DAVID L. LAIL, PETITIONER,
v.
HONORABLE ISAAC ANDERSON, JR., JUDGE OF THE CIRCUIT COURT, TWENTIETH JUDICIAL CIRCUIT, LEE COUNTY, FLORIDA, RESPONDENT
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David Lail sought a writ of prohibition challenging the trial court's order striking his notice of expiration of speedy trial and motion for discharge. The appellate court treated the petition as one for certiorari, quashed the order, and remanded for the trial court to hear evidence and argument on the motion for discharge.
The court quashed the order striking the notice and motion, holding that no requirement exists that a motion for discharge telegraph its theory, and that the trial court should have continued the hearing rather than striking the motion. The court treated the petition as one for certiorari rather than prohibition because the motion for discharge was never ruled upon on the merits.
[1] Prohibition is an inappropriate remedy to review a trial court's ruling on a motion for discharge when the hearing on the motion was interrupted and no ruling was made.
[2] A motion for discharge under Florida Rule of Criminal Procedure 3.191(h) is not required to specify the theory upon which the defendant is entitled to discharge.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We know of no requirement that a motion for discharge telegraph its theory, and less harsh means of achieving the end sought by the trial court could have been employed by continuing the hearing for a day after the appellant's theory became evident.”
Establishes that trial courts may not strike motions for discharge based on lack of specificity and should use less drastic alternatives like continuing the hearing.
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Join FLexlaw to unlock all legal intelligenceLail filed a notice of expiration of speedy trial and motion for discharge. The trial court struck both the notice and motion, ruling that the motion …
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PER CURIAM.
David L. Lail files this petition for writ of prohibition which questions the propriety of the trial court’s granting of the state’s motion to strike his notice of expiration of speedy trial and motion for discharge. Because the hearing on his motion for discharge was interrupted before its conclusion, and because no ruling was ever made on it, prohibition appears to be an inappropriate vehicle for review as the trial court is not without jurisdiction. Sherrod v. Franza, 427 So. 2d 161 (Fla.1983). (Prohibition is the appropriate remedy where an accused has been denied his right to a speedy trial and his motion for discharge has been denied.) Instead we treat it as a petition for writ of certiorari, and quash the order striking his notice and motion.
Florida Rule of Criminal Procedure 3.191(h) permits the striking of a notice of expiration if premature. The trial court, however, struck the notice and the motion for discharge because it ruled the motion had not been sufficiently specific to apprise the state of appellant’s theory why he was entitled to discharge. We know of no requirement that a motion for discharge telegraph its theory, and less harsh means of achieving the end sought by the trial court could have been employed by continuing the hearing for a day after the appellant’s theory became evident.
The state claims that there is a factual dispute about the date of arrest, and that we are bound by the trial court’s determination of facts on review of an order following a motion for discharge, citing McKinney v. Yawn, 625 So. 2d 885 (Fla. 1st DCA 1993). But the court below made no such finding, as it struck the motion before the parties were given an opportunity to present evidence regarding the date of arrest. The failure of the court to proceed on a facially sufficient motion to discharge constitutes a departure from the essential requirements of law.
Accordingly, we grant certiorari, quash the order striking Lail’s notice of expiration of speedy trial and motion for discharge, with directions to hear evidence and argument the parties present on the motion.
DANAHY, A.C.J., and CAMPBELL and FULMER, JJ., concur.
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Citator
Cited By
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D.D. v. State, 817 So. 2d 930 (Fla. 4th DCA 2002)
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State v. Lail, 687 So. 2d 873 (Fla. 2d DCA 1997)…discharge. The trial court ultimately struck both the notice of expiration and the motion for discharge. Lail then filed a petition for writ of prohibition in this court, which we treated as a petition for writ of certiorari. See Lail v. Anderson, 665 So. 2d 312 (Fla. 2d DCA 1995). In granting certiorari in that instance, we quashed the “order striking Lail’s notice of speedy trial and motion for discharge, with directions to hear evidence and argument ... on the motion.” Id. at 313. Consistent with this c…
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Barstad v. State, 925 So. 2d 1135 (Fla. 5th DCA 2006)…t cannot review by prohibition the speedy trial issue until the trial court has denied a motion for discharge. That order should be included in an appendix attached to the petition. See Sherrod v. Franza, 427 So. 2d 161 (Fla.1983); Lail v. Anderson, 665 So. 2d 312 (Fla. 2d DCA 1995). Accordingly, we deny the petition for prohibition without prejudice to Bar-stad to file a motion for discharge in the circuit court. Petition for Writ of Prohibition DENIED. MONACO, J., concurs. LAWSON, J., concurs speciall…
Authorities Cited
- Sherrod v. The Honorable Arthur J. Franza, 427 So. 2d 161 (Fla. 1983)
- McKINNEY v. Honorable Theron A. Yawn, Jr., 625 So. 2d 885 (Fla. 1st DCA 1993)