EDWARD POUNCY AND SAM AVERY DAWSON, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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The Florida appellate court reversed defendants' convictions on misdemeanor lottery charges, finding that the trial court violated their right to a speedy trial by failing to try them within 90 days of arrest. The court held that when misdemeanor and felony counts arising from the same conduct are joined in a single information, defendants cannot be deprived of speedy trial protections on the misdemeanor counts.
The court held that when misdemeanor and felony counts arising from the same circumstances are joined in a single information, defendants cannot be deprived of speedy trial rights on the misdemeanor counts. The 90-day speedy trial period was not tolled because although the trial court had authority to extend the time period under the rule, no order of court extending the period appeared in the record.
[1] A person charged with a misdemeanor must be brought to trial within ninety days of arrest, absent demand, or be discharged upon timely motion.
[2] A defendant is entitled to the benefit of speedy trial rules regardless of custody status or bail.
Previewing 2 of 5 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“Where, as in the case sub judice, the state has joined the misdemeanor counts in a single information in which a felony arising out of the same circumstances also is charged, the defendants thereby cannot be deprived of their speedy trial rights on the misdemeanor counts.”
Establishes the core holding that joinder of misdemeanor and felony charges protects speedy trial rights on the misdemeanor counts.
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Join FLexlaw to unlock all legal intelligencePouncy and Dawson were arrested on April 7, 1973, and charged in a three-count information with possession of lottery tickets (misdemeanor), possessio…
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PER CURIAM.
The defendant-appellants were arrested on April 7, 1973 and on May 11, 1973 a three count information was filed charging them with (1) possession of lottery tickets, (2) possession of lottery paraphernalia, and (3) aiding and assisting in the operation of a lottery. Counts one and two thereof are misdemeanors and count three is a felony. Defendants were arraigned on May 29, 1973 and pled not guilty. Thereafter they filed a motion to dismiss and to suppress and a motion for discovery. On July 5, 1973 a hearing was held on the motion to suppress which was denied on September 17, 1973, at which time the court set a trial date. On the following day, defendants filed a motion to dismiss pursuant to CrPR 3.191 the misdemeanor counts on the grounds that they were not tried thereon within ninety (90) days from the date of their arrest on April 7, 1973. The motion was denied and the cause proceeded to jury trial, at the conclusion of which the jury found the defendants not guilty of the felony count and guilty of the misdemean-or counts. The trial court fined the defendants $1,000 each and placed them on two years’ probation. This appeal ensued.
Appellants first contend that the trial court erred in denying their right to a speedy trial. We find this point well taken.
Where, as in the case sub judice, the state has joined the misdemeanor counts in a single information in which a felony arising out of the same circumstances also is charged, the defendants thereby cannot be deprived of their speedy trial rights on the misdemeanor counts. Sibert v. Hare, Fla.App. 1973, 276 So. 2d 523. It affirmatively appears from the record that defendants were continuously available for trial during the 90 day period subsequent to April 7, 1973, the date they were taken into custody as a result of their conduct giving rise to the misdemeanors charged and, therefore, the trial court erred in denying defendants’ motion to dismiss the misdemeanor charges pursuant to CrPR 3.191(a)(1).
In opposition to the above point, the state argues that pursuant to CrPR 3.-191 (d) (2) (iv) the pretrial hearing on de fendants’ motion to suppress extended the time for trial and thereby tolled the 90 day speedy trial rule.1 However, although CrPR 3.191(d) gives the trial court the power to extend the time periods established by the rule, an extension thereunder must be by order of court and no such order appears in the record of the instant case.
Accordingly, the judgments of conviction on the misdemeanor counts and the sentences thereon are reversed and the cause remanded to the trial court to discharge defendants on the misdemeanor counts.
Reversed and remanded with directions.
. Which was the reasoning used by the trial judge as grounds for denial of the motion to dismiss.