Right to a Speedy Trial in Florida
What happened to speedy trial in Florida during the COVID-19 crisis?
On July 29, 2021, AOSC21-17, Amendment 1, provides that all time periods involving the speedy trial procedure in criminal court proceedings remained suspended until the close of business on October 4, 2021, for persons who were taken into custody before March 14, 2020. The close of business on October 4, 2021, was also designated as the restart date for noncriminal traffic infraction court proceedings.
For persons taken into custody on or after March 14, 2020, any time period involving the speedy trial procedures in criminal court proceedings remain suspended until the close of business on January 3, 2022.
Under Florida’s speedy trial statute, anyone accused of a felony is entitled to be tried within 175 days of having been taken into custody, and anyone accused of a misdemeanor is entitled to be tried within 90 days of having been taken into custody.
Two different types of speedy trial rights exist for a criminal case in Florida.
- First, a person charged with a criminal offense in Florida is entitled to the statutory speedy trial rights provided under Florida Statutory provisions which provide for very specific time limits.
- The speedy trial time limit for a misdemeanor is 90 days.
- The speedy trial time limit for a felony is 175 days.
- Second, a person charged with a criminal offense is entitled to the state constitutional protections provided by the Florida Constitutional and/or the federal constitutional protections under the Sixth Amendment which provide for a speedy trial even when the statutory remedy under state law has been waived.
The speedy trial provisions provided by the state and federal constitution are “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself.” Dickey v. Florida, 398 U.S. 30, 37–38 (1970).
The Florida legislature in enacting the statutory speedy trial rights also recognized that the passage of time may blur the memories of the witnesses leading to an unjust verdict. The purpose of the speedy trial provisions is to provide a defendant with a speedy trial when he has a “bona fide” desire for a speedy trial. The rule was not intended to be a game played in an attempt to subvert justice.
The coronavirus (COVID_19) outbreak has also caused the courts throughout Florida to create administrative orders that temporarily tolled the speedy trial period in noncriminal traffic infraction cases and in criminal cases.
Attorney on Speedy Trial Rules in Florida
If you have questions about how the speedy trial rules might impact your case, then seek out the services of an experienced criminal defense attorney. The speedy trial rules create an important defense that can be used under a variety of circumstances.
The speedy trial rules might depend on any number of factors that might include:
- how any suspension period is applied during the COVID-19 crisis;
- when the crime was allegedly committed;
- how the case was initiated;
- whether the charge is a felony, misdemeanor, or traffic offense;
- the specific type of charge; or
- the age of the alleged victim.
At Sammis Law Firm, our four attorneys represent clients throughout Hillsborough County, and the surrounding counties in the Tampa Bay Area including Hernando County, Pasco County, Pinellas County, Manatee County, Sarasota County, and Polk County.
Our main office is in downtown Tampa and our second office is in New Port Richey.
Call 813-250-0500 to discuss your case.
Rules for Speedy Trial Motions in Hillsborough County
According to a recent administrative order, special rules apply to cases pending at the Tampa or Plant City courthouse when any of the following types of motions are filed:
- Motion for Discharge
- Motion for Speedy Trial
- Notice of Expiration
These are the only motions and notices accepted by the clerk in Hillsborough County, FL, without a Notice of Hearing. Upon receipt of a Motion for Discharge, Motion for Speedy Trial, or a Notice of Expiration of Time for Speedy Trial, the clerk will immediately contact the judicial assistant for a hearing time.
After obtaining a hearing time, the clerk will notify all necessary parties.
Delay in Filing Formal Charges After an Arrest
The right to a speedy trial is particularly important when the police make an arrest and then the State Attorney’s Office takes an unusually long time to file criminal charges.
The speedy trial rule often explains why law enforcement officers wait until the entire investigation is complete before making an arrest. The arrest, under most circumstances, will trigger the speedy trial provisions.
The right to a speedy trial is different from the statute of limitations. In the criminal justice context, the statute of limitations prevents law enforcement officers from taking too long to make the arrest after the crime allegedly occurred.
Speedy Trial When the Felony Arrest is Filed as a Misdemeanor
The ninety-day speedy trial right in misdemeanor cases often comes into play when the defendant is originally arrested for a felony and then the prosecutor with the State Attorney’s Office makes a filing decision to only proceed on misdemeanor charges.
The filing decision usually occurs within 21 days, however, if the defendant is out of custody then the State Attorney Office may take longer to make the filing decision. In these cases, the shorter time limit of 90 days will often apply even though the original charge was a felony.
Speedy Trial in a DUI Case with a Blood or Urine Test
The right to a speedy trial comes into play when the defendant is charged with DUI in a case involving a blood or urine test. If the police make an arrest and then obtain a blood or urine sample, it may take months for the test results to come back.
If the defendant does not waive the right to a speedy trial the prosecutor is often faced with very little time to prepare for trial when and if the results come back. In cases in which the driver is seriously injured, the law enforcement officer may wait to make the arrest until after the blood sample has been tested by the crime lab.
Those DUI cases involving a blood or urine test are also complicated by the fact that the State Attorney’s Office must present the chain of custody witnesses (all individuals who handled the testing sample) and expert testimony to interpret the results.
Given the complexity of these misdemeanor DUI cases, the defendant is often in a position to prepare quickly for the trial and refuse to waive speedy trial. We have seen cases in which the prosecutor became so concerned about the time limit that the prosecutor was willing to drop or reduce the charges to avoid a speedy trial.
In felony DUI cases involving death or serious bodily injury (or in a misdemeanor case when only the defendant is seriously injured) then law enforcement will seek to obtain a blood sample after the crash but before any formal arrest is made. Then the State Attorney’s Office will not file the charge until after the blood results come back (which can take 30 – 90 days).
It is not uncommon in these types of cases for a prosecutor in Florida to wait up to four months to formally file charges. Because the defendant was not arrested on the day that the crash occurred the speedy trial period may not begin to run until the DUI citation is issued or the charges are filed at the clerk’s office.
Reasons to Waive the Right to a Speedy Trial under Florida Law
Requesting a speedy trial is not always in the defendant’s best interest because often the defense needs additional time to be thoroughly prepared for pre-trial motions and the trial.
In certain cases, however, it may be advantageous for the defendant to assert his right to a speedy trial under Florida law.
At the Sammis Law Firm, we have experience with asserting the speedy trial Florida statutory provisions to cause a discharge of criminal offenses when the State was unwilling or unable to proceed to trial in a timely manner.
If you have pending charges in Hillsborough County, Pinellas County, Pasco County, Polk County, Manatee County or Sarasota County, contact an experienced Tampa criminal attorney to discuss your right to a speedy trial.
Time Periods: Without Filing a Demand for a Speedy Trial
Under the Sixth Amendment of the United States Constitution and Section 16 of Article I of the Florida Constitution, a person accused of a criminal offense is entitled to a “speedy and public trial.”
In accordance with these constitutional mandates, Florida Rule of Criminal Procedure Rule 3.191(a) provides that an individual arrested for a felony offense must be brought to trial within 175 days of the arrest and an individual arrested for a misdemeanor offense must be brought to trial within 90 days of an arrest.
Under Rule 3.191(p), the remedy for failing to bring the defendant to trial within the time period prescribed is a discharge of the offense charged with a ban on any further prosecution.
The 90 day speedy trial period for a misdemeanor or the 175-day speedy trial period for a felony begins with the defendant’s initial arrest (or when the defendant is taken into custody on the charge), regardless of when the charges are ultimately filed.
When the Speedy Trial Period Runs Out – the Recapture Period
After the speedy trial period has run, the defendant can file a “notice of expiration of the speedy trial period” and serve the prosecutor with a copy of the pleading. Defense counsel should usually serve a copy directly on the prosecutor assigned to the case.
When the defendant files the “notice of expiration of the speedy trial period” it alerts the clerk’s office and the prosecution of the need to bring the case to the attention of the court. The notice imposes a deadline upon the judge and the prosecutor to hold a speedy trial hearing within five (5) business days.
Speedy Trial Hearing on the Notice of Expiration
At the speedy trial hearing, the court must schedule a trial to take place within the 10-day recapture period under Florida Rule of Criminal Procedure 3.191(p)(3).
Florida law provides that the trial which must begin within ten (10) calendar days of the hearing on the notice unless one of the grounds listed in Rule 3.191(p) applies.
One of the limited excuses for non-compliance with the 10 day recapture period is the unavailability of the defendant or his counsel for trial. In other words, the delay can not be caused by the defendant or his attorney.
If none of the limited excuses for non-compliance exists, then the defense can file a “motion for discharge” which requires the court to discharge (or throw out) the criminal charge.
A defendant, by invoking the speedy trial rules, must have a “bona fide desire to obtain a trial sooner than otherwise might be provided, and a demand for a speedy trial shall be deemed a pleading by the accused that he is available for trial, has diligently investigated his case, and is prepared to go to trial in five days.” § 3.191(c), Fla.Stat.
The effect of the speedy trial rule is that the defendant is enlisted as a timekeeper, first, to realize the expiration of 175 days and, then, through the filing of a motion for discharge, to notify the state of its inattention to docket control.
No Amendments to Charging Document After the Speedy Trial Period Has Run
Another benefit of not waiving your right to a speedy trial is that the State may not be allowed to amend the charging document or information after the speedy trial period has run, even if a notice of expiration has not been filed by the defense.
This is especially important in a case in which the prosecutor has charged a less serious offense (sometime inadvertently) and could figure out later that the criminal charge could be amended to a more serious offense.
If an amended information is filed after the speedy trial time period has expired and the defendant has not previously waived his or her right to speedy trial, then upon proper motion by the defendant, the new charges contained in the amended information must be dismissed if they arose from the same criminal episode as the charges contained in the original information. State v. Clifton, 905 So.2d 172, 178 (Florida 5th DCA 2005); Pezzo v. State, 903 So.2d 960, 961 (Florida 1st DCA 2005).
The Clifton court further states that, “Under these circumstances, it is not necessary to file a notice of expiration because the time limit has expired. All that is necessary is that the defendant file a Motion for Discharge directed to the new charges.” Id.
In many speedy trial cases, however, the state will rely on a legal concept called the “continuation principle”. The continuation principle was described as follows by the Third DCA in Guzman v. State, 211 So. 3d 204 (3d DCA 2016):
“A subsequently filed information, which contains language indicating that is a continuation of the same prosecution, timely commenced will not be considered an abandonment of the first information and therefore will not be barred by the statute of limitations [citation omitted].
However, where the state has brought a ‘new charge, alleging a new and distinct crime with different elements, under a completely different statute’ the statute of limitation requires dismissal of the new charge” Labrador v. State, 13 So. 3d 1070,1072 (3rd DCA 2007). Guzman @ 208, supra.
Florida’s Speedy Trial Rights with a Demand for a Speedy Trial
Even before the time period for a speed trial without a demand runs but after an information is filed, a defendant can file a separate pleading called a “Demand for Speedy Trial” which must be served on the prosecuting attorney.
Under Florida Statute Rule 3.191(b) once the “Demand for Speedy Trial” is properly filed, the defendant shall have a right to trial within sixty (60) days. The same five (5) day time limit for the speedy trial hearing and 10 day recapture period explained above apply after a demand is filed.
Effect of Refiling a Charge after a Nol Pross
As a general rule, the State is entitled to refile a charge after it nol prosses a case. Under Rule 3.191(o), however, the State cannot avoid the “intent and effect” of the speedy trial rule by announcing a nolle prosequi. State v. Morris, 662 So.2d 378, 378 (Fla. 4th DCA 1995). In Morris, the defendant filed a demand for speedy trial. In response, the State announced a nolle prosequi when it was unable to produce its witnesses for trial. The State then refiled charges the next day. The defendant was not rearrested, and he voluntarily appeared for his arraignment two months later after receiving a notice in the mail. The defendant then moved for discharge, which was granted and then upheld by the appellate court. Id.
The Florida Supreme Court has held that the speedy trial period continues to run after a nolle prosequi is entered. State v. Agee, 622 So.2d 473, 475 (Fla. 1993). If a defendant is not able to move for a discharge before the expiration of the 65-day expiration period (demand period plus window of recapture period), a defendant is not required to give notice of expiration of speedy trial under Rule 3.191(p)(2) if thereafter charged for the same crime. Morris, 662 So.2d at 379.
Waiving Issues Related to Defects in a Summons
A misdemeanor summons served pursuant to Fla. Stat. §901.09(2), might operate as the functional equivalent of an “arrest” for purposes of triggering the start of the speedy trial period. The defense attorney might argue that the summons was defective for any number of reasons, including when it is served on a Sunday. See Miller v. Johnson, 466 So.2d 340, 341 (Fla. 5th DCA 1985) (misdemeanor summons may not be served on Sunday).
In order not to waive any objects to the summons being defective, those issues should be raised at arraignment and prior to entering a plea of not guilty. To properly preserve the issue, the Defendant might need to file a motion to quash the summons. See Fla. Stat. §903.10; Miller, 466 So.2d at 340-41 (civil rules apply to service of a criminal summons); H. Trawick, Florida Practice & Procedure §8-1 (1994) (a general appearance occurs when a defendant pleads to the merits because upon entry of a general appearance, defects in service are waived).
Constitutional Right to a Speedy Trial
Even when the defendant waives his rights to a speedy trial under Florida Rule of Criminal Procedure Rule 3.191, the defendant may still have a right to have the charges discharged under his constitutional rights to a jury trial.
The Supreme Court of the United States has listed the following four considerations in determining whether a delay caused by the prosecution caused a violation of an individual’s right to a speedy trial:
- The length of the delay which is a triggering mechanism that can create a presumption of prejudice;
- Whether the reason for the delay was negligent, deliberate or justified;
- The defendant’s assertion of his right and effort to protect his right to a speedy trial; and
- Whether prejudice to the defendant resulted from the delay.
See Barker v. Wingo, 407 U.S. 514, 530 (1972). The court must balance these four considerations against each other, and the presence of one factor is not dispositive.
Speedy Trial for Noncriminal Traffic Infractions
The constitutional right to a speedy trial does not apply to a civil traffic infraction. Instead, the provisions of Rule 6.325, Florida Rules of Traffic Court (TCR) apply.
Under TCR 6.325(a), a defendant charged with a noncriminal traffic infraction is entitled to a dismissal of the infraction if trial is not commenced within one-hundred eighty (180) days from the date the defendant is served with the Uniform Traffic Citation or other charging document.
The defendant signing the citation counts as service being constituted. If the delay is attributable to the defendant or defense counsel, then there is no speedy trial issue. TCR 6.325(b). Several actions might constitute a waiver of speedy trial including having a D-6 entered or having a prior continuance.
When a defendant is charged with a civil traffic infraction, the state has one-hundred eighty (180) days from the date the defendant is served with the uniform traffic citation (UTC) or other charging documents. If the trial is not commenced within that one-hundred eighty (180) day time period, the defendant is normally entitled to a dismissal.
The defendant can toll the right to a speedy trial on a traffic infraction when the defendant was unavailable for trial or the failure to have a trial was otherwise attributable to the defendant or defendant’s counsel.
Rule 6.325(c) makes the speedy trial rule inapplicable “to any infraction that is a part of a single episode or occurrence, which is attached to, consolidated with, or associated with a criminal traffic offense.”
When a witness in the case, the defendant, or the defendant’s attorney is a legislator, Section 11.111, Florida Statutes, require the case to be continued without the continuance being charged against any party, during:
- any session of the Legislature and for 15 days before and after any session; and
- during any period of required committee work and for one day before and after the required committee work.
During the period of continuance, the time period for determining the right to a speedy trial is tolled.
On March 30, 2020, the Supreme Court of Florida created Administrative Order No. AOSC20-19 which is entitled “COVID-19 EMERGENCY PROCEDURES FOR SPEEDY TRIAL IN NONCRIMINAL TRAFFIC INFRACTION COURT PROCEEDINGS.”
The administrative order is a response to the impact the Coronavirus Disease 2019 (COVID-19) pandemic is having on the operation of the courts dealing with noncriminal traffic infractions. The administrative order provides:
- All time periods involving the speedy trial procedure in noncriminal traffic infraction court proceedings are suspended from the close of business on Friday, March 13, 2020, nunc pro tunc, until the close of business on Monday, April 20, 2020, or as provided by subsequent order.
- The suspension of time limits under the speedy trial procedure restores additional days equal to the number stated herein.
- This order is not intended to preclude conducting noncriminal traffic infraction proceedings if the chief judge of the circuit has determined that it is feasible to conduct such proceedings remotely.
- Additional orders extending or modifying these measures will be issued as warranted by changing circumstances during the public health emergency.
On July 20, 2020, the Thirteenth Judicial Circuit enacted Administrative Order S-2020-035 which amended Administrative Order S-2020-023. The order addresses civil traffic infraction court proceedings during the COVID-19 mitigation efforts. As part of the Thirteenth Judicial Circuit’s COVID-19 mitigation efforts, civil traffic infraction cases have been suspended since March 18, 2020.
The Florida Supreme Court has determined that hearings in civil traffic infraction cases may be conducted remotely. Fla. Supreme Court Admin. Order AOSC20-23, Amendment 5 (July 2, 2020). The lates administrative order became necessary to amend Administrative Order S-2020-023 (Court Proceedings during COVID-19 Mitigation Efforts – Phase II) regarding civil traffic infraction cases to authorize hearings conducted by audiovisual conferencing such as Zoom™ (www.zoom.us).
Section 4 of Administrative Order S-2020-023 is amended as follows:
The current suspension of civil traffic dockets will continue until further order of the chief judge. All civil traffic infraction matters in cases pending in Hearing Officer Division “Z-2,” County Civil Traffic Division “F,” East County Division “0,” and East County Division “Y,” including arraignments and final hearings, may be conducted by audiovisual conferencing.
In accordance with Administrative Order S-2020-028 (Conditional Plea of No Contest in Civil Traffic Infraction Proceedings during COVID-19 Mitigation Efforts), civil traffic infraction hearing officers may consider any written conditional pleas of no contest and enter appropriate dispositions.
This administrative order amends section 4 of Administrative Order S-2020-023 (Court Proceedings during COVID-19 Mitigation Efforts – Phase II). Copies of the order were sent to All Civil Traffic Division Judges, all Civil Traffic Infraction Hearing Officers, and each law enforcement agency.
The Prior Suspension of Speedy Trial on March 13, 2020
In Fla. Admin. Order No. AOSC20-13, the speedy trial provisions in Florida were suspended beginning at the close of business on March 13, 2020. That suspension was continued in Fla. Admin. Order No. AOSC20-17 and in Fla. Admin. Order No. AOSC20-23. The suspension of time limits under the speedy trial procedure restored additional days equal to the number stated in the applicable administrative order.
Thereafter, the Florida Supreme Court has begun rolling back the suspension of the time limits in Fla. Admin. Order No. AOSC21-17, issued on June 4, 2021, provides:
(8)a. All time periods involving the speedy trial procedure in criminal court proceedings remain suspended until the close of business on:
i. October 4, 2021, for persons who were taken into custody before March 14, 2020. When the suspension ends and the time periods resume, any time that accrued under the procedure for a person before the suspension began at the close of business on March 13, 2020, must be subtracted from the time periods provided by the procedure. See, e.g., Sullivan v. State, 913 So. 2d 762 (Fla. 5th DCA 2005), and State v. Hernandez, 617 So. 2d 1103 (Fla. 3rd DCA 1993).
ii. January 3, 2022, for persons who were taken into custody on or after March 14, 2020.
b. When the time periods involving the speedy trial procedure resume under Section II.E.
i. The 10-day time period in Florida Rule of Criminal Procedure 3.191(p)(3) is increased to 30 days; and
ii. Florida Rule of Criminal Procedure 3.191(l) is modified to authorize a court to order an extension of the time periods provided under the rule for the following exceptional circumstances: general congestion of the court’s docket, a lack of courtroom space, an unavailability of jurors, or a personnel shortage for public defenders, state attorneys, clerks of court, or the courts.
In Fla. Admin. Order No. AOSC21-17, subsection 9 sets out special rules for Speedy Trial in Juvenile Court Proceedings. The order provides:
All time periods involving the speedy trial procedure in juvenile court proceedings remain suspended until the close of business on October 4, 2021.
When the suspension ends and the time periods resume, any time that accrued under the procedure for a juvenile before the suspension began at the close of business on March 13, 2020, must be subtracted from the time periods provided by the procedure….
Speedy Trial Clause – Wikipedia article provides a general overview of the speedy trial clause. The article also discusses the practical application of the right to a speedy trial in each of the 50 states, including information on the waiver of speedy trial by a request for a continuance.
Title I of the Speedy Trial Act of 1974 – Summary of Title I of the Speedy Trial Act of 1974 from the official website of the United States Department of Justice. Read the summary in the DOJ Criminal Resource Manual which is cited as USAM 9-17.000.
Prosecutor’s Right to a Speedy Trial – Visit the Florida Legislature website to find Section 960.0015, Florida Statute, that allows the prosecutor with the state attorney’s office to file a demand for a speedy trial if the state has met its obligations under the rules of discovery, the charge is a felony or misdemeanor, the court has granted at least three continuances upon the request of the defendant over the objection of the state attorney.
Attorney on the Right to a Speedy Trial in Florida
The right to a speedy trial provides important protections for anyone accused of a crime in Florida. At Sammis Law Firm, P.A., we take that right seriously and are ready to comply with the client’s desire for a speedy trial in appropriate cases.
The proper remedy to prevent a prosecution that is barred by the expiration of the statute of limitations is the filing of a petition for writ of prohibition.
We represent clients charged with criminal cases with speedy trial issues throughout central Florida including Tampa or Plant City in Hillsborough County, Bartow in Polk County, New Port Richey or Dade City in Pasco County, St. Petersburg or Clearwater in Pinellas County, Brooksville in Hernando County, Bradenton in Manatee County, or Sarasota or Venice in Sarasota County, Florida.
Call (813) 250-0500 to discuss your case.
This article was last updated by Jason D. Sammis on Thursday, July 29, 2020.