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Speedy Trial In Florida: An Overview


Any discussion of Speedy Trial must begin with the United States Constitution, where the right has its foundation. The Sixth Amendment provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and have assistance of counsel for his defense". Clearly, there are many very important rights afforded an accused person in the Sixth Amendment, which include "the right to a speedy and public trial". This is what is referred to as "Constitutional Speedy Trial", which is different from what is referred to as "Rule Speedy Trial". While the underlying concept is the same, "Rule Speedy Trial", which most states have adopted, sets specific time frames within which an accused must be brought to trial, and the remedies for a violation. Florida's speedy trial rule is set forth in Florida Rule of Criminal Procedure 3.191.

The seminal federal case on Constitutional Speedy Trial is Barker v. Wingo, which was decided by the United States Supreme Court in 1972. In Barker, the petitioner and a co-defendant were arrested in the state of Kentucky for a homicide in July of 1958. The petitioner was indicted on September 15th, of 1958. His case was delayed pending the trial of the co-defendant who, apparently, was to become a witness against the petitioner at the petitioner's trial. For a number of reasons, the petitioner's trial was continued sixteen times and he was not tried until October 9th, 1963 (over five years after his arrest). He did not object to the delay until the twelfth continuance. Following his conviction, the petitioner appealed to the Sixth Circuit (a federal appellate court) asserting a violation of his Sixth Amendment right to a speedy trial. The Court determined that the petitioner had waived his right to a speedy trial for the entire period that preceded his first objection to the delay and that no violation had resulted. The United States Supreme Court granted his petition for writ of certiorari to define the speedy trial right, within the meaning of the Sixth Amendment, and determine whether his right to a speedy trial had indeed been violated.

In lieu of promulgating a bright line test or specific time periods within which an accused must be tried (lest the indictment be dismissed), the Court established four factors to be considered in assessing whether a violation of the speedy trial right has occurred: (1) length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant.

The first factor, length of the delay, functions as a "triggering mechanism". There must be some period of delay which is presumptively prejudicial to "trigger" an analysis of the remaining factors. While the U.S. Supreme Court declined to assign a number of days, weeks, or months, it is unlikely that a Constitutional Speedy Trial claim will gain any traction unless there has been at least six months between the time the crime was committed and the time the accused is set for trial.

The second factor, reason for the delay, requires the lower courts to assign different weights to different reasons. A deliberate attempt by the government to delay the trial for purposes of obtaining a tactical advantage over the accused, for example, should be weighed heavily against the government versus negligence or overcrowded court dockets, which should be weighted less heavily. A missing witness on the other hand, should serve to justify an appropriate delay.

The third factor is self evident. The accused person must assert his or her right to a speedy trial if he or she is to raise an effective claim that the right has been violated. Without some affirmative assertion of the right to a speedy trial, the accused will face some significant challenges in proving that he or she is entitled to the relief requested. Where the right is asserted, it is to be afforded "strong evidentiary weight".

The fourth factor requires a court to consider the manner in which the accused is prejudiced by virtue of the delay. The Supreme Court noted that there are three interests in which the speedy trial right was designed to protect: (1) the prevention of oppressive pre-trial incarceration; (2) minimization of the accused person's anxiety and concerns; and (3) limiting the possibility that the defense will be impaired. Of the three, the third is the most significant because the inability of the defendant to prepare his or her case "skews the fairness of the entire system". Memories fade, witnesses die, evidence can sometimes be lost or destroyed. There are a host of issues that delay can cause which can in turn prejudice the accused person in terms of his or her ability to adequately defend against the allegations.

In Barker, the Supreme Court ultimately affirmed the decision of the Sixth Circuit Court of Appeal, holding that there was no violation of the petitioner's right to a speedy trial. These are often very factually driven analyses and a purported Constitutional Speedy Trial violation can (and has) resulted in criminal charges being dismissed, based on the applicability of the four factors to the underlying circumstances.

In its analysis, the U.S. Supreme Court noted that "there was no Constitutional basis for holding that the speedy trial right can be quantified into a specific number of days or months" but "the States are free to prescribe a reasonable period consistent with Constitutional standards". Many (if not all) have, including Florida. It is to an examination of those standards that we now turn.

Florida Rule of Criminal Procedure 3.191 provides that where speedy trial has not been affirmatively demanded (and where it has not been affirmatively waived either), the accused person must be brought to trial within 90 days of being taken into custody on a misdemeanor offense, and within 175 days of being taken into custody for a felony offense. For purposes of Florida's speedy trial rule, a person is taken into custody if he or she is either (1) physically arrested; or (2) served with a notice to appear in lieu of a physical arrest (which can only happen in a misdemeanor case). Where the person is charged with both a felony and a misdemeanor in the same Information or Indictment, the felony time frames will apply to both the felony and the misdemeanor offense.

Where, on the other hand, the accused affirmatively demands a speedy trial (in writing), the time period within which he or she must be brought to trial is lessened significantly. The trial must commence within sixty days from the date the demand is filed, whether the charge is a misdemeanor or a felony. The court will set a calendar call not later than five days following the filing of the demand for speedy trial, and the trial must commence not less than five days, nor more than forty-five days, thereafter. A trial is deemed to have commenced when the jury panel is sworn or, in the case of a non-jury trial, when the judge begins hearing evidence.

Where the accused has not waived his or her right to a speedy trial, and has not been tried within the time periods specified above, he or she must file a pleading entitled "Notice of Expiration of Speedy Trial". Once that pleading is filed, the court is required, within five days, to hold a hearing for purposes of setting the cause for trial in the ensuing ten day period. A defendant not brought to trial within that ten day period, through no fault of the defendant, is forever discharged from the crime.

You should be aware that there are some limitations on the rule's application. For example, time may be extended where the accused is charged by Information or Indictment in Florida and is imprisoned outside the jurisdiction (in which case the applicable periods do not being to run until the accused person is returned to the state of Florida). The otherwise applicable time periods may also be extended based on exceptional circumstances. These include unexpected illness or incapacity of an essential witnesses, a showing by the state that the case is unusually complex or that specific evidence or testimony is not available despite diligent efforts to secure it, or where the accused has caused a major delay or disruption by preventing the attendance of witnesses or otherwise.

As a St. Petersburg criminal defense attorney, I am sometimes asked by my clients whether it is in their best interests to demand a speedy trial. The answer, typically, is "no". Often times, the development of an effective defense strategy takes time and the accused may actually be disadvantaged by demanding that the case be tried sooner than later. For example, discovery must be obtained and thoroughly reviewed. Depending on the nature of the charge, the contents of the discovery can be voluminous (especially in white collar fraud cases, where document pages can reach into the hundreds or even thousands). Often times, there may be video or audio recordings that must be obtained from the arresting agency once the initial discovery packet has been received. In felony cases, where it appears the case will be tried, depositions of the state's witnesses are almost always a must, which take time to prepare for if they are to be effectively conducted.

In other situations, pre-trial defensive motions may need to be filed before the case can be tried. Where motions are granted, the entire case may dismissed (in a stand your ground immunity situation, for example) or certain key pieces of evidence may be suppressed (where tangible evidence was obtained in violation of the accused person's Fourth Amendment right against unlawful search and seizure or where statements from the accused were obtained in violation of his or her Fifth Amendment right against self incrimination and/or Sixth Amendment right to counsel).

I have found, over the years, that it is a rare situation wherein a bona fide tactical advantage can be obtained by demanding a speedy trial. As a Pinellas County state prosecutor, I had individuals demand a speedy trial in cases I was assigned to, and they did not end well for the accused. It is amazing how quickly the state can assemble its case where a speedy trial is demanded. In one instance, I tried the case within the fifteen day "recapture window", following the filing of the defendant's Notice of Expiration of Speedy Trial. My main detective, who was essential to the presentation of my case, was on vacation in South Carolina. Aware of the speedy trial problem, he flew back to Florida for the day, testified, and resumed his vacation later in the evening. There were other issues with the case, including what appeared to be insufficient time to complete DNA analysis on certain key pieces of evidence. The defendant banked on the unavailabilty of the wtiness and the lack of crucial forensic evidence. The witness showed, the analysis was completed in time, and the accused was convicted. The case could have been resolved for far less time than he ultimately received but, once the demand for speedy trial was made, all plea negotiations ceased and a trial was his only option (the court wasn't making any offers at that point either).

The decision to use Constitutional or rule speedy trial protections as defense strategy must be carefully weighed and considered by the attorney and the client. While the opportunities for an outright discharge based on speedy trial are rare, they do occur. When they do, the benefit to the accused person is both obvious and plenary, especially when he or she is facing a significant period of incarceration.

As always, I hope this post was helpful. Have a safe and happy holiday season.