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Motion for Discharge

What happens when a person is arrested but then the State Attorney’s Office takes too long to file formal charges?

If the prosecutor takes too long to file formal charges, then when the speedy trial period expires, the criminal defense attorney can file a “Motion for Discharge.”

The motion for discharge under Fla. R. Crim. P., Rule 3.191 will explain when the the person was first arrested for the felony or misdemeanor charge (or provided with a notice to appear in court) and why the prosecutor waited too long to file formal charges.

Under the Florida’s speedy trial rule, the delay might result in the Defendant being entitled to immediate discharge.

If the court improperly denies the motion for discharge under the speedy trial rule, then the decision can be reviewed by filing a petition for writ of prohibition to a higher court.

Attorneys on Filing a Motion for Discharge in Florida

If you were arrested for a crime, find out more about how long the State Attorney’s Office has to file formal charges against you. We help our clients fight felony and misdemeanor charges.

If the state takes too long, we understand the rules that require the court to grant the motion for discharge because of the speedy trial rule.

If the motion is improperly denied by the trial court, then we understand the rules that apply for filing the petition for writ of prohibition to a higher court.

We also understand the differences between the speedy trial rule and the statute of limitations.

Our main office is located in Tampa, FL, in Hillsborough County. We also have a second office in New Port Richey in Pasco County, FL. Our four criminal defense attorneys fight criminal cases throughout the greater Tampa Bay area.

Call 813-250-0500.

Effect of the State Refiling after a Nolle Prosequi

The fact that the State enters a nolle prosequi to drop the charges, but then refiles the charge does not toll the speedy trial period. Instead, it continues to run and the State may not refile charges based on the same conduct after the period has expired.

In State v. Agee, 622 So. 2d 473, 475 (Fla. 1993), the Florida Supreme Court reasoned:

…to allow the State to unilaterally toll the running of the speedy trial period by entering a nol pros would eviscerate the rule. A prosecutor with a weak case could simply enter a nol pros while continuing to develop the case and then refile charges based on the same criminal episode months or even years later, thus effectively denying an accused the right to a speedy trial while the State strengthens its case.

In Genden v. Fuller, 648 So. 2d 1183 (Fla. 1994), the Florida Supreme Court considered the question of whether Florida Rule of Criminal Procedure 3.191 should be construed to allow the State to effectively toll the running of the speedy trial period by entering a “no action” prior to the filing of formal charges.

These cases explain why the state cannot get around the speedy trial rule simply by taking no action prior to the expiration of the speedy trial period and then filing an information.

When Does the Speedy Trial Rule Apply?

The speedy trial rule applies to “person[s] charged with a crime by indictment or information” as explained by Fla.R.Crim.P. 3.191(a).

The Florida Supreme Court has made it clear that “the date of the original arrest is the focal point for speedy trial considerations” and “[o]nly in specifically delineated circumstances can the time period be adjusted.” Weed v. State, 411 So. 2d 863, 865 (Fla. 1982).

Therefore, the fact that charges are not yet filed when a prosecution is terminated by a “no action” is not determinative.

As the court explained in Thigpen v. State, 350 So. 2d 1078 (Fla. 4th DCA 1977), cert. dismissed, 354 So. 2d 986 (Fla. 1978), the fact that grand jury returned a “No True Bill” on the charge of first-degree murder and the defendant was released from custody prior to being charged with second-degree murder and rearrested on that charge did not affect running of speedy trial time.

In Florida, the courts recognize that the speedy trial time commences when the accused is “taken into custody as defined under subdivision (d)” of rule 3.191, rather than when charges are filed against the accused. Fla.R.Crim.P. 3.191(a).

For example, in Allen v. State, 275 So. 2d 238 (Fla. 1973), the Florida Supreme Court explained that the speedy trial period commenced from date the defendant was taken into custody.

Subdivision (d) provides:

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.

(Emphasis added).

This article was last updated on Thursday, April 2, 2020.

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