Florida Criminal Defense and DUI Defense Blog

22Mar, 21

Speedy Trial Rights criminal defenseI was feeling nostalgic on the way into work this morning, thinking about my old vinyl records and going to ball games in person and other things we don’t get to do any more.

That got me to thinking about the right to a speedy trial, another right that we don’t have any more (but hopefully, like vinyl records and going to ballgames, it’s going to come back).

Let me start by explaining what the rule used to be.

It used to be that, if you were arrested in Florida for a misdemeanor charge, you were entitled to have your case brought to trial within ninety days of the date of arrest. If they didn’t start your trial within ninety days of the date of arrest, and any delay that had happened was not the fault of you or your lawyer asking for a delay, then on day ninety-one you or your lawyer could file a motion to dismiss and the case would be over. Done. Finished. Complete.

The same rule was in place for a felony trial, for a felony charge, but the time period was six months, one hundred and eighty days. But again, if you hadn’t been brought to trial within one hundred and eighty days and none of the delay along the way was caused by something you or your lawyer did, then you’re entitled to have the case dismissed on day one hundred eighty one.

The process would be that your lawyer would file a notice that speedy trial had expired. The judge was required to have a hearing on that within a week, and the judge would simply do basic math – take a look at the date of arrest, take a look at the date your notice was filed, and see whether in the intervening period any delay was caused by you or your lawyer. If not, the judge was required by law to dismiss the charge against you.

That was without you filing a demand for a speedy trial. Florida also had a rule that, whether it was a misdemeanor or a felony, at any time after arraignment, you or your lawyer could file a demand for a speedy trial.

If you filed a demand for a speedy trial, you were saying, “I’m ready and I want a trial and I want it as soon as I can get it.” The judge was required to set your case for trial within sixty days of your filing of that demand. If your trial didn’t begin with jury selection during those sixty days, on day sixty-one your lawyer would file again a motion to dismiss, a notice that speedy trial had expired. The judge had to have a hearing on it within a week, and if you were right, the case was dismissed.

Along the way, some people used that rule successfully and some significant high-profile cases got dismissed. The powers-that-be decided, “We better help the State, help the prosecution and change the rule.”

I think of this as the “Oops” exception or adjustment. Oops, we forgot. So the Supreme Court built into the rules now if you and your lawyer believe that the speedy trial period has run, you file a notice that it has expired. The judge has to have a hearing on your notice within five days. If you’re right, the judge has to set your trial within ten days of that hearing. If the judge doesn’t hold the five-day hearing, your trial still has to start within fifteen days of your filing the notice that speedy trial has expired. If that doesn’t happen, on day sixteen, it’s over.

They call this the “recapture rule”. It basically gives the prosecutor, at most, fifteen days to pull their case together if it slipped through the cracks, they forgot, sun was in their eyes, dog ate their homework, any of those kinds of reasons why the case didn’t get brought to trial within that time period.

Now, these rules are strictly the creation of the powers-that-be in Florida. They’re not Constitutional. They don’t stem from the Bill of Rights.

You do have a Federal right to a speedy trial. In order to win a dismissal because your Federal right to a speedy trial has been denied, you pretty much have to show that, number one, you were innocent, number two, you could have proven your innocence, and number three, the only reason you can no longer prove your innocence is because, due to the delay caused by anybody other than you or your lawyer, valuable evidence has been lost or destroyed.

For example, if you had an ironclad alibi proven by a witness with the credibility of insert-your-best-guess-here, your most reliable person – the president, the pope, your local minister, a bunch of school teachers, whoever. If you had proof that you couldn’t have committed the crime because you were somewhere else at the time, and the case dragged out so long that those witnesses died or disappeared or developed an illness or were unavailable permanently, then and only then are you likely to win a Federal speedy trial claim.

Let me help you put this into context in what happened in a local case here.

There’s a terrible car crash. A person died as a result of the car crash. The accused driver was believed by the police to have been intoxicated. He was arrested. He was handcuffed. He was taken by the police, in the back of a police car, to a hospital where they took a blood test. He was told again that he was under arrest.

Then, after they had the blood test, they “un-arrested” him. The State, the police and the prosecutor took the position that he had never been arrested at all. The police sent off the blood test, and when the blood test came back, many months later, they arrested him then.

When his lawyer prepared the case, she discovered that, in fact, he had been arrested the night of the crash. His felony speedy trial period had expired, no fault of his, and she filed a motion to dismiss.

At the hearing for the motion to dismiss, the prosecutor claimed and argued that he had never been arrested in the first place; the arrest was only after the blood test, so the speedy trial period had not expired.

The judge reviewed the evidence, including the videotapes from body cams that showed police, not only handcuffing him, but telling him that he was under arrest. The judge quite rightly found that he was, in fact, under arrest, and the speedy trial period for a felony started that day.

That felony period has changed from one hundred and eighty days now to one hundred seventy-five, with the fifteen day recapture period, but they didn’t get the case to trial during that period. When the lawyer filed the notice that speedy trial had expired, instead of getting the case into trial within fifteen days, the prosecutor took the position that the defense attorney was wrong and that the period hadn’t expired at all.

The judge found that it did, and he was arrested that night. The speedy trial period had expired. The notice was filed. The fifteen days had gone by. Trial hasn’t started. Game over.

The prosecutor appealed. The fourth district court of appeals said the trial judge was right, the prosecution was wrong.

Now, that’s a very unusual outcome, because usually prosecutors would not take that chance. In fact, when there is one of those terrible crashes where somebody dies, the police ordinarily do not arrest the driver that night, for that very reason.

They get a blood test, send it to a crime lab and they want to wait to make the arrest and start the speedy trial clock until they get the blood test back. They don’t want to risk the six months expiring, but they don’t want to take a chance on some bright, aggressive criminal defense lawyer filing a demand for speedy trial early, and limiting the prosecution to the sixty days.

Let me adjust that a little bit.

The time periods now on a speedy trial demand are that the judge has to have a hearing within five days of the demand, the trial has to start within forty-five days of the hearing, and when speedy trial has expired that fifty day period, we have the same five plus ten day recapture period if the trial hasn’t started, so now your speedy trial period with a demand is now sixty-five days.

This is why sometimes when you read in the paper about one of those terrible crashes, you have to wonder why they didn’t make an arrest. Well, there’s the reason they didn’t make an arrest.

Alas, like vinyl records and going to ballgames in person, our speedy trial rule has gone away. Hopefully, that’s only temporary.

Last year, as a result of the COVID pandemic, the chief justice of Florida’s Supreme Court entered an order suspending the right to a speedy trial and the rules of speedy trial indefinitely, until further notice.

Many of us have been clamoring, loudly, to get this right restored to us and to our clients, but that has not been the case, yet. Understandably, prosecutors are lobbying to delay the reintroduction of speedy trial for as long as they possibly can.

Hopefully, in the very near future, we’ll be back at the ballpark and we’ll be back having speedy trials.

If you or someone you know would like some help navigating Florida’s Legal System, call us at 772-466-4900 or click on the CONTACT tab above.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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