Monday, April 23, 2012


 
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Florida Rules of Criminal Procedure

3.191. Speedy Trial

(a) Speedy Trial without Demand. Except as otherwise provided by this rule, and subject to the limitations imposed under subdivisions (e) and (f), every person charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor, or within 175 days of arrest if the crime charged is a felony. If trial is not commenced within these time periods, the defendant shall be entitled to the appropriate remedy as set forth in subdivision (p). The time periods established by this subdivision shall commence when the person is taken into custody as defined under subdivision (d). A person charged with a crime is entitled to the benefits of this rule whether the person is in custody in a jail or correctional institution of this state or a political subdivision thereof or is at liberty on bail or recognizance or other pretrial release condition. This subdivision shall cease to apply whenever a person files a valid demand for speedy trial under subdivision (b).

(b) Speedy Trial upon Demand. Except as otherwise provided by this rule, and subject to the limitations imposed under subdivisions (e) and (g), every person charged with a crime by indictment or information shall have the right to demand a trial within 60 days, by filing with the court a separate pleading entitled “Demand for Speedy Trial,” and serving a copy on the prosecuting authority.

(1) No later than 5 days from the filing of a demand for speedy trial, the court shall hold a calendar call, with notice to all parties, for the express purposes of announcing in open court receipt of the demand and of setting the case for trial.

(2) At the calendar call the court shall set the case for trial to commence at a date no less than 5 days nor more than 45 days from the date of the calendar call.

(3) The failure of the court to hold a calendar call on a demand that has been properly filed and served shall not interrupt the running of any time periods under this subdivision.

(4) If the defendant has not been brought to trial within 50 days of the filing of the demand, the defendant shall have the right to the appropriate remedy as set forth in subdivision (p).

(c) Commencement of Trial. A person shall be considered to have been brought to trial if the trial commences within the time herein provided. The trial is considered to have commenced when the trial jury panel for that specific trial is sworn for voir dire examination or, on waiver of a jury trial, when the trial proceedings begin before the judge.

(d) Custody. For purposes of this rule, a person is taken into custody (1) when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged, or (2) when the person is served with a notice to appear in lieu of physical arrest.

(e) Prisoners outside Jurisdiction. A person who is in federal custody or incarcerated in a jail or correctional institution outside the jurisdiction of this state or a subdivision thereof, and who is charged with a crime by indictment or information issued or filed under the laws of this state, is not entitled to the benefit of this rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending and until written notice of the person’s return is filed with the court and served on the prosecutor. For these persons, the time period under subdivision

(a) commences on the date the last act required under this subdivision occurs. For these persons the time period under subdivision (b) commences when the demand is filed so long as the acts required under this subdivision occur before the filing of the demand. If the acts required under this subdivision do not precede the filing of the demand, the demand is invalid and shall be stricken upon motion of the prosecuting attorney. Nothing in this rule shall affect a prisoner’s right to speedy trial under law.

(f) Consolidation of Felony and Misdemeanor. When a felony and a misdemeanor are consolidated for disposition in circuit court, the misdemeanor shall be governed by the same time period applicable to the felony.

(g) Demand for Speedy Trial; Accused Is Bound. A demand for speedy trial binds the accused and the state. No demand for speedy trial shall be filed or served unless the accused has a bona fide desire to obtain a trial sooner than otherwise might be provided. A demand for speedy trial shall be considered a pleading that the accused is available for trial, has diligently investigated the case, and is prepared or will be prepared for trial within 5 days. A demand filed by an accused who has not diligently investigated the case or who is not timely prepared for trial shall be stricken as invalid on motion of the prosecuting attorney. A demand may not be withdrawn by the accused except on order of the court, with consent of the state or on good cause shown. Good cause for continuances or delay on behalf of the accused thereafter shall not include nonreadiness for trial, except as to matters that may arise after the demand for trial is filed and that reasonably could not have been anticipated by the accused or counsel for the accused. A person who has demanded speedy trial, who thereafter is not prepared for trial, is not entitled to continuance or delay except as provided in this rule.

(h) Notice of Expiration of Time for Speedy Trial; When Timely. A notice of expiration of speedy trial time shall be timely if filed and served on or after the expiration of the periods of time for trial provided in this rule. However, a notice of expiration of speedy trial time filed before expiration of the period of time for trial is invalid and shall be stricken on motion of the prosecuting attorney.

(i) When Time May Be Extended. The periods of time established by this rule may be extended, provided the period of time sought to be extended has not expired at the time the extension was procured. An extension may be procured by:

(1) stipulation, announced to the court or signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced;

(2) written or recorded order of the court on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined in subdivision (l);

(3) written or recorded order of the court with good cause shown by the accused; or

(4) written or recorded order of the court for a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pretrial motions, for appeals by the state, for DNA testing ordered on the defendant’s behalf upon defendant’s motion specifying the physical evidence to be tested pursuant to section 925.12(2), Florida Statutes, and for trial of other pending criminal charges against the accused.

(j) Delay and Continuances; Effect on Motion. If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that:

(1) a time extension has been ordered under subdivision

(i) and that extension has not expired;

(2) the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel;

(3) the accused was unavailable for trial under subdivision (k); or

(4) the demand referred to in subdivision (g) is invalid.

If the court finds that discharge is not appropriate for reasons under subdivisions (j)(2), (3), or (4), the pending motion for discharge shall be denied, provided, however, that trial shall be scheduled and commence within 90 days of a written or recorded order of denial.

(k) Availability for Trial. A person is unavailable for trial if the person or the person’s counsel fails to attend a proceeding at which either’s presence is required by these rules, or the person or counsel is not ready for trial on the date trial is scheduled. A person who has not been available for trial during the term provided for in this rule is not entitled to be discharged. No presumption of nonavailability attaches, but if the state objects to discharge and presents any evidence tending to show nonavailability, the accused must establish, by competent proof, availability during the term.

(l) Exceptional Circumstances. As permitted by subdivision (i) of this rule, the court may order an extension of the time periods provided under this rule when exceptional circumstances are shown to exist. Exceptional circumstances shall not include general congestion of the court’s docket, lack of diligent preparation, failure to obtain available witnesses, or other avoidable or foreseeable delays. Exceptional circumstances are those that, as a matter of substantial justice to the accused or the state or both, require an order by the court. These circumstances include:

(1) unexpected illness, unexpected incapacity, or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial;

(2) a showing by the state that the case is so unusual and so complex, because of the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation or preparation within the periods of time established by this rule;

(3) a showing by the state that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time;

(4) a showing by the accused or the state of necessity for delay grounded on developments that could not have been anticipated and that materially will affect the trial;

(5) a showing that a delay is necessary to accommodate a codefendant, when there is reason not to sever the cases to proceed promptly with trial of the defendant; and

(6) a showing by the state that the accused has caused major delay or disruption of preparation of proceedings, as by preventing the attendance of witnesses or otherwise.

(m) Effect of Mistrial; Appeal; Order of New Trial. A person who is to be tried again or whose trial has been delayed by an appeal by the state or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from a reviewing court that makes possible a new trial for the defendant, whichever is last in time. If a defendant is not brought to trial within the prescribed time periods, the defendant shall be entitled to the appropriate remedy as set forth in subdivision (p).

(n) Discharge from Crime; Effect. Discharge from a crime under this rule shall operate to bar prosecution of the crime charged and of all other crimes on which trial has not commenced nor conviction obtained nor adjudication withheld and that were or might have been charged as a result of the same conduct or criminal episode as a lesser degree or lesser included offense.

(o) Nolle Prosequi; Effect. The intent and effect of this rule shall not be avoided by the state by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode or otherwise by prosecuting new and different charges based on the same conduct or criminal episode whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.

(p) Remedy for Failure to Try Defendant within the Specified Time.

(1) No remedy shall be granted to any defendant under this rule until the court has made the required inquiry under subdivision (j).

(2) At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled “Notice of Expiration of Speedy Trial Time,” and serve a copy on the prosecuting authority.

(3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

Committee Notes

1972 Amendment. Same as prior rule. The schedule is omitted as being unnecessary.

1977 Amendment. An appeal by the state from an order dismissing the case constitutes an interlocutory appeal and should be treated as such. The additional phrase removes any ambiguities in the existing rule.

1980 Amendment. (a)(1). Speedy Trial without Demand.

1. Prisoners in Florida institutions are now treated like any other defendant [formerly (b)(1)].

2. Federal prisoners and prisoners outside Florida may claim the benefit of this subdivision once special prerequisites are satisfied under (b)(1).

3. Before a court can discharge a defendant, the court must make complete inquiry to ensure that discharge is appropriate.

(a)(2). Speedy Trial upon Demand. 1. Trial cannot be scheduled within 5 days of the filing of the demand without the consent of both the state and the defendant.

2. Before a court can discharge a defendant, the court must make complete inquiry to ensure that discharge is appropriate.

3. Prisoners in Florida are now treated like any other defendant [formerly (b)(2)].

4. Federal prisoners and prisoners outside Florida may claim the benefit of this subdivision once special prerequisites are satisfied under (b)(1).

(a)(3). Commencement of Trial.

1. Minor change in language to reflect case law.

(a)(4). Custody. [NEW]

1. Custody is defined in terms tantamount to arrest. This definition was formerly contained in (a)(1).

2. Where a notice to appear is served in lieu of arrest, custody results on the date the notice is served.

(b)(1). Prisoners outside Jurisdiction. [NEW]

1. Prisoners outside the jurisdiction of Florida may claim benefit under (a)(1) and (a)(2) after the prisoner returns to the jurisdiction of the court where the charge is pending and after the prisoner files and serves a notice of this fact.

2. As an alternative, certain prisoners may claim the benefit of sections 941.45–941.50, Florida Statutes (1979).

3. Former (b)(1) is repealed. (b)(2). [NEW]

1. Where a misdemeanor and felony are consolidated for purposes of trial in circuit court, the misdemeanor is governed by the same time period applicable to the felony. To claim benefit under this provision, the crimes must be consolidated before the normal time period applicable to misdemeanors has expired.

2. Former (b)(2) is repealed.

(b)(3). Repealed and superseded by (b)(1).

(c). Demand for Speedy Trial.

1. The subdivision recognizes that an invalid (spurious) demand must be stricken.

2. The subdivision now puts a 5-day limit on the time when a defendant must be prepared.

(d)(1). Motion for Discharge.

1. Under the amended provision, a prematurely filed motion is invalid and may be stricken.

(d)(2). When Time May Be Extended.

1. The terms “waiver,” “tolling,” or “suspension” have no meaning within the context of the subdivision as amended. The subdivision addresses extensions for a specified period of time.

2. Except for stipulations, all extensions require an order of the court.

3. The term “recorded order” refers to stenographic recording and not recording of a written order by the clerk.

(d)(3). Delay and Continuances.

1. Even though the normal time limit has expired under (a)(1) or

(a)(2), a trial court may not properly discharge a defendant without making a complete inquiry of possible reasons to deny discharge. If the court finds that the time period has been properly extended and the extension has not expired, the court must simply deny the motion. If the court finds that the delay is attributable to the accused, that the accused was unavailable for trial, or that the demand was invalid, the court must deny the motion and schedule trial within 90 days. If the court has before it a valid motion for discharge and none of the above circumstances are present, the court must grant the motion.

(e). Availability for Trial.

1. Availability for trial is now defined solely in terms of required attendance and readiness for trial.

(f). Exceptional Circumstances.

1. The 2 extension limit for unavailable evidence has been discarded.

2. The new trial date paragraph was eliminated because it simply was unnecessary.

(g). Effect of Mistrial; Appeal; Order of New Trial.

1. Makes uniform a 90-day period within which a defendant must be brought to trial after a mistrial, order of new trial, or appeal by the state or defendant.

(h)(1). Discharge from Crime.

1. No change.

(h)(2). Nolle Prosequi.

1. No change.

1984 Amendment.

(a)(1). Repeals the remedy of automatic discharge from the crime and refers instead to the new subdivision on remedies.

(a)(2). Establishes the calendar call for the demand for speedy trial when filed. This provision, especially sought by prosecutors, brings the matter to the attention of both the court and the prosecution. The subdivision again repeals the automatic discharge for failure to meet the mandated time limit, referring to the new subdivision on remedies for the appropriate remedy.

(i). The intent of (i)(4) is to provide the state attorney with 15 days within which to bring a defendant to trial from the date of the filing of the motion for discharge. This time begins with the filing of the motion and continues regardless of whether the judge hears the motion.

This subdivision provides that, upon failure of the prosecution to meet the mandated time periods, the defendant shall file a motion for discharge, which will then be heard by the court within 5 days. The court sets trial of the defendant within 10 additional days. The total 15-day period was chosen carefully by the committee, the consensus being that the period was long enough that the system could, in fact, bring to trial a defendant not yet tried, but short enough that the pressure to try defendants within the prescribed time period would remain. In other words, it gives the system a chance to remedy a mistake; it does not permit the system to forget about the time constraints. It was felt that a period of 10 days was too short, giving the system insufficient time in which to bring a defendant to trial; the period of 30 days was too long, removing incentive to maintain strict docket control in order to remain within the prescribed time periods.

The committee further felt that it was not appropriate to extend the new remedy provisions to misdemeanors, but only to more serious offenses.

1992 Amendment. The purpose of the amendments is to gender neutralize the wording of the rule. In addition, the committee recommends the rule be amended to differentiate between 2 separate and distinct pleadings now referred to as “motion for discharge.” The initial “motion for discharge” has been renamed “notice of expiration of speedy trial time.”

Links

Florida Rules of Criminal Procedure
TABLE OF CONTENTS
I. SCOPE, PURPOSE, AND CONSTRUCTION
3.010. Scope
3.020. Purpose and Construction
3.025. State and Prosecuting Attorney Defined
II. GENERAL PROVISIONS
3.030. Service of Pleadings and Papers
3.040. Computation of Time
3.050. Enlargement of Time
3.060. Time for Service of Motions and Notice of Hearing
3.070. Additional Time after Service by Mail
3.080. Nonverification of Pleadings
3.090. Pleading Captions
3.111. Providing Counsel to Indigents
3.112. Minimum Standards for Attorneys in Capital Cases
3.115. Duties of State Attorney; Criminal Intake
III. PRELIMINARY PROCEEDINGS
3.120. Committing Judge
3.121. Arrest Warrant
3.125. Notice to Appear
3.130. First Appearance
3.131. Pretrial Release
3.132. Pretrial Detention
3.133. Pretrial Probable Cause Determinations and Adversary Preliminary Hearings
3.134. Time for Filing Formal Charges
3.140. Indictments; Informations
3.150. Joinder of Offenses and Defendants
3.151. Consolidation of Related Offenses
3.152. Severance of Offenses and Defendants
3.153. Timeliness of Defendant�s Motion; Waiver
IV. ARRAIGNMENT AND PLEAS
3.160. Arraignment
3.170. Pleas
3.171. Plea Discussions and Agreements
3.172. Acceptance of Guilty or Nolo Contendere Plea
3.180. Presence of Defendant
V. PRETRIAL MOTIONS AND DEFENSES
3.190. Pretrial Motions
3.191. Speedy Trial
3.192. Motions for Rehearing
3.200. Notice of Alibi
3.201. [Battered-Spouse Syndrome Defense]
3.202. Expert Testimony of Mental Mitigation During Penalty Phase of Capital Trial: Notice and Examination by State Expert
3.203. Defendant�s Mental Retardation as a Bar to Imposition of the Death Penalty
3.210. Incompetence to Proceed: Procedure for Raising the Issue
3.211. Competence to Proceed: Scope of Examination and Report
3.212. Competence to Proceed: Hearing and Disposition
3.213. Continuing Incompetency to Proceed, Except Incompetency to Proceed with Sentencing: Disposition
3.214. Incompentency to Proceed to Sentencing: Disposition
3.215. Effect of Adjudication of Incompetency to Proceed: Psychotropic Medication
3.216. Insanity at Time of Offense or Probation or Community Control Violation: Notice and Appointment of Experts
3.217. Judgment of Not Guilty by Reason of Insanity: Disposition of Defendant
3.218. Commitment of a Defendant Found Not Guilty by Reason of Insanity
3.219. Conditional Release
VI. DISCOVERY
3.220. Discovery
VII. SUBSTITUTION OF JUDGE
3.231. Substitution of Judge
VIII. CHANGE OF VENUE
3.240. Change of Venue
IX. THE TRIAL
3.250. Accused as Witness
3.251. Right to Trial by Jury
3.260. Waiver of Jury Trial
3.270. Number of Jurors
3.280. Alternate Jurors
3.281. List of Prospective Jurors
3.290. Challenge to Panel
3.300. Voir Dire Examination, Oath and Excusing of Member
3.310. Time for Challenge
3.315. Exercise of Challenges
3.320. Manner of Challenge
3.330. Determination of Challenge for Cause
3.340. Effect of Sustaining Challenge
3.350. Peremptory Challenges
3.360. Oath of Trial Jurors
3.361. Witness Attendance and Subpoenas
X. CONDUCT OF TRIAL; JURY INSTRUCTIONS
3.370. Regulation and Separation of Jurors
3.371. Juror Questions of Witnesses
3.372. Juror Notebooks
3.380. Motion for Judgment of Acquittal
3.381. Final Arguments
3.390. Jury Instructions
3.391. Selection of Foreperson of Jury
3.400. Materials to the Jury Room
3.410. Jury to Review Evidence or for Additional Instructions
3.420. Recall of Jury for Additional Instructions
3.430. Jury not Recallable to Hear Additional Evidence
XI. THE VERDICT
3.440. Rendition of Verdict; Reception and Recording
3.450. Polling the Jury
3.451. Judicial Comment on Verdict
3.470. Proceedings on Sealing Verdict
3.490. Determination of Degree of Offense
3.500. Verdict of Guilty where more than one Count
3.505. Inconsistent Verdicts
3.510. Determination of Attempts and Lesser Included Offenses
3.520. Verdict in Case of Joint Defendants
3.530. Reconsideration of Ambiguous or Defective Verdict
3.540. When Verdict may be Rendered
3.550. Disposition of Defendant
3.560. Discharge of Jurors
3.570. Irregularity in Rendition, Reception and Recording of Verdict
3.575. Motion to Interview Juror
XII. POST-TRIAL MOTIONS
3.580. Court May Grant New Trial
3.590. Time for and Method of Making Motions; Procedure; Custody Pending Hearing
3.600. Grounds for New Trial
3.610. Motion for Arrest of Judgment; Grounds
3.620. When Evidence Sustains Only Conviction of Lesser Offense
3.630. Sentence Before or After Motion Filed
3.640. Effect of Granting New Trial
XIII. JUDGMENT
3.650. Judgment Defined
3.670. Rendition of Judgment
3.680. Judgment on Informal Verdict
3.690. Judgment of Not Guilty; Defendant Discharged and Sureties Exonerated
3.691. Post-Trial Release
3.692. Petition to Seal or Expunge
XIV. SENTENCE
3.700. Sentence Defined; Pronouncement and Entry; Sentencing Judge
3.701. Sentencing Guidelines
3.702. Sentencing Guidelines (1994)
3.703. Sentencing Guidelines (1994 as amended)
3.704. The Criminal Punishment Code
3.710. Presentence Report
3.711. Presentence Report: When Prepared
3.712. Presentence Report: Disclosure
3.713. Presentence Investigation Disclosure: Parties
3.720. Sentencing Hearing
3.721. Record of the Proceedings
3.730. Issuance of Capias when necessary to bring Defendant Before Court
3.750. Procedure when Pardon is Alleged as Cause for not Pronouncing Sentence
3.760. Procedure when Nonidentity is Alleged as Cause for not Pronouncing Sentence
3.770. Procedure when Pregnancy is Alleged as Cause for not Pronouncing Death Sentence
3.780. Sentencing Hearing for Capital Cases
3.790. Probation and Community Control
3.800. Correction, Reduction and Modification of Sentences
XV. EXECUTION OF SENTENCE
3.810. Commitment of Defendant; Duty of Sheriff
3.811. Insanity at Time of Execution: Capital Cases
3.812. Hearing on Insanity at Time of Execution: Capital Cases
3.820. Habeas Corpus
XVI. CRIMINAL CONTEMPT
3.830. Direct Criminal Contempt
3.840. Indirect Criminal Contempt
XVII. POSTCONVICTION RELIEF
3.850. Motion to Vacate, Set Aside or Correct Sentence
3.851. Collateral Relief After Death Sentence has been Imposed and Affirmed on Direct Appeal
3.852. Capital Postconviction Public Records Production
3.853. Motion for Postconviction DNA Testing
XVIII. FORMS
3.984. Application for Criminal Indigent Status
3.985. Standard Jury Instructions
3.9855. Juror Voir Dire Questionaire
3.986. Forms Related to Judgment and Sentence
3.987. Motion for Postconviction Relief
3.988. Sentencing Guidelines
3.989. Affidavit, Petition and Order to Expunge or Seal Forms
3.990(a). Sentencing Guidelines Scoresheet
3.990(b). Supplemental Sentencing Guidelines Scoresheet
3.991(a). Sentencing Guidelines Scoresheet (October 1, 1995)
3.991(b). Supplemental Sentencing Guidelines Scoresheet (October 1, 1995)
3.992(a). Criminal Punishment Code Scoresheet
3.992(b). Supplemental Criminal Punishment Code Scoresheet
3.993. Forms Related to Capital Postconviction Records Production
3.994. Order Certifying no Incarceration
3.995. Order of Revocation of Probation/Community Control
Florida Rules of Appellate Procedure
Florida Rules of Civil Procedure
Florida Rules of Criminal Procedure
Florida Rules of Evidence - Evidence Code
Florida Rules of Evidence - Witnesses, Records and Documents
Florida Family Law Rules of Procedure
Florida Rules of Judicial Administration
Florida Rules of Juvenile Procedure
Florida Traffic Court Rules