CLEVELAND J. BARLOW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court granted the petition for rehearing to correct an error regarding the speedy trial time for Count I.
The appellant pointed out that Count I was transferred to county court on a different date than the other counts, affecting the speedy trial calculati…
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PER CURIAM.
The appellant, brings this appeal from the circuit court’s order denying a writ of prohibition challenging that the appellant had not been brought to trial within 90 days as required by Fla.R.Crim.P. 8.191(a)(1). The appellant was arrested on several charges of selling obscene materials, in violation of Florida Statute 847.011 (1975), each charge a misdemeanor. Although the appellant asserts that speedy trial time begins with each of his several arrests, we conceive that the speedy trial time began on November 24, 1975, when all charges against the appellant were transferred at his request from municipal court to county court in order to provide him a jury trial. On Monday, February 23, 1976, 91 days after the cause was transferred to the county court, the appellant filed a motion for discharge alleging violation of the speedy trial rule.
The trial court was correct in denying the appellant’s motion for discharge. Although the motion was filed 91 days after the cause was transferred to county court, the 90th day was a Sunday. As we stated in State ex rel. Williams v. Bruce, 327 So. 2d 51, 52 (Fla. 1st DCA 1976), Fla.Rule Crim.P. 3.040 applies. The last date of the speedy .trial period was on Monday, February 23, 1976, the date the appellant was scheduled for trial and the date he filed the motion for discharge. See also Griffith v. State, 299 So. 2d 618 (Fla. 2nd DCA 1974).
AFFIRMED.
McCORD, Acting C. J., DREW, E. HARRIS, and MASON, ERNEST E. (Retired), Associate Judges, concur.
PER CURIAM.
The appellant has brought to our attention that of the four counts against the appellant, three of them were transferred to the county court on November 24,. 1975, but the fourth count, Count I, was transferred to the county court on November 17, 1975. In that respect, therefore, this Court was in error in asserting:
“Although the Appellant asserts that speedy trial time begins with each of his several arrests, we conceive that the speedy trial time began on November 24, 1975, when a 11 charges against the Appellant were transferred at his request from municipal court to county court in order to provide him a jury trial. . . . ” (Emphasis added). ’
As to Count I, therefore, the speedy trial time had expired when, on February 23, 1976, the cause was brought to trial. As the state concedes, Count I against the appellant should be discharged.
The Petition for Rehearing is granted for the purpose of discharging the appellant as to Count I, in all other respects our opinion of April 7, 1977 remains unchanged.
McCORD, Acting C. J., and DREW, E. HARRIS, and MASON, ERNEST E., Associate Judges, concur.
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City OF Fort Lauderdale v. Mattlin, 566 So. 2d 1330 (Fla. 4th DCA 1990)…of article V, a municipal defendant could transfer charges that were punishable by incarceration to state court and thus be entitled to the speedy trial rule’s protection. See State v. Hendricks, 309 So. 2d 232 (Fla. 4th DCA 1975); Barlow v. State, 345 So. 2d 758 (Fla. 1st DCA 1977). In our judgment, an ordinance violation punishable by incarceration is the equivalent of a misdemeanor for the purpose of applying speedy trial rules. A municipality may not deny an accused rights under the speedy trial rule, w…
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Peavy v. Judge, Division "S", Fifteenth Judicial Circuit, 454 So. 2d 800 (Fla. 4th DCA 1984)…r the case to West Palm Beach and his demand for jury trial should not be construed as a defense continuance which waived his speedy trial rights. We agree. Respondent relies on Atkins v. State, 265 So. 2d 72 (Fla. 3d DCA 1972) and Barlow v. State, 345 So. 2d 758 (Fla. 1st DCA 1977) to support the trial court’s determination that the petitioner’s actions constituted a defense continuance which resulted in a waiver of his right to speedy trial. We find both of these cases distinguishable from the case sub jud…
Authorities Cited
- Oakley Riley Griffith v. State, 299 So. 2d 618 (Fla. 2d DCA 1974)
- The State of Fla. upon the relation of David Lee Williams & James H. Williams v. Bruce, 327 So. 2d 51 (Fla. 1st DCA 1976)