STATE OF FLORIDA EX REL. EARL DENNIS, RELATOR,
v.
HONORABLE ELLEN MORPHONIOS, AS JUDGE OF THE CRIMINAL COURT OF RECORD IN AND FOR DADE COUNTY, FLORIDA, RESPONDENT
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A demand for speedy trial under Rule 1.191 CrPR is ineffective if filed before an indictment or information has been filed.
Relator filed a demand for speedy trial before being indicted or informed against. His subsequent motion for discharge was denied after an information…
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This is an original proceeding in prohibition. In his suggestion the relator alleged that on June 6, 1971, he was arrested and charged with breaking and entering a dwelling, and that on the day following his arrest he filed a demand for speedy trial under Rule 1.191 CrPR 33 F.S.A.1 The suggestion contained no allegation as to whether or when the defendant was indicted or informed against. It was alleged that a motion for discharge, filed by him on August 31, 1971, more than 60 days after the demand, was denied by the respondent judge.
A rule nisi in prohibition was issued. In the return filed thereto it was disclosed that at the time of the demand for speedy trial the relator had not been indicted or informed against, and that an information was filed on July 21, 1971, charging him with breaking and entering a dwelling with intent to commit grand larceny (a felony).
In the return the respondent contended the suggestion was insufficient, for failure to show that an indictment or information had preceded the demand for a speedy trial, and that as a matter of law the demand was ineffective and a nullity because it was filed prior to the filing of the information, which by § 1.191(a) (2) was prerequisite.2
The matter having come on for final hearing and having been considered on the record, briefs and arguments of counsel, *846we are impelled to conclude that the position taken by the respondent is correct, and that prohibition should be denied.
Accordingly, the rule nisi in prohibition is discharged, and the suggestion in prohibition is dismissed.
The time for filing a petition for rehearing herein is reduced to five days.
It is so ordered.
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Citator
Cited By
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Schuty v. State, 281 So. 2d 507 (Fla. 1st DCA 1973)…0, 156 So. 612. . State ex rel. Young v. Willis (Fla.App.1972), 257 So. 2d 64; State ex rel. Novak v. Sepe (Fla.App.1971), 253 So. 2d 454; State ex rel. Hanks v. Goodman (Fla.1971), 253 So. 2d 129; State ex rel. Dennis v. Morphonios (Fla.App.1971), 252 So. 2d 845.…
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Rembert v. State, 284 So. 2d 428 (Fla. 3d DCA 1973)…or speedy trial which is filed prior to the information is a nullity. State ex rel. Hanks v. Goodman (Fla.1971), 253 So. 2d 129; see also, State ex rel. Novak v. Sepe (Fla.App.1971), 253 So. 2d 454; State ex rel. Dennis v. Morphonios (Fla.App.1971), 252 So. 2d 845. The state maintains that no showing of prejudice was made in fact before the trial judge because the state informed the court that defense counsel was present at a preliminary hearing, when three of the main prosecution witnesses testified, and at…
Authorities Cited
- State of Fla. ex rel. Terry Michael Hanks & Rudolph Frank Seymour v. The Honorable Murray Goodman, 253 So. 2d 129 (Fla. 1971)
- In re Florida Rules of Criminal Procedure, 245 So. 2d 33 (Fla. 1971)