DEFENDANT, by and through the undersigned counsel and pursuant to Fla. R. Crim. P. 3.191(p), moves this Honorable Court to forever discharge him from the crimes alleged in the above-styled cause. As grounds for this Motion, the Defendant states as follows:
- On June 29, 2010 Defendant was placed in custody, issued a Notice to Appear, and charged with an Open House Party, a second degree misdemeanor under Florida Statutes § 856.015(2).
- Fla. R. Crim. P. 3.191(a) provides that “every person charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor, or within 175 days of arrest if the crime charged is a felony. . . The time periods established by this subdivision shall commence when the person is taken into custody as defined under subdivision (d).”
- Fla. R. Crim. P. 3.191(d) provides that “[f]or purposes of this rule, a person is taken into custody . . . (2) when the person is served with a notice to appear in lieu of physical arrest.”
- The period for bringing Defendant to trial under Fla. R. Crim. P. 3.191(a) expired on September 28, 2010.
- Defendant has not waived his right to speedy trial.
- The State has not filed a qualifying charging document in the above captioned case.
- The Supreme Court of Florida has held that “the speedy trial time begins to run when an accused is taken into custody and continues to run even if the State does not act until after the expiration of that speedy trial period. The State may not file charges based on the same conduct after the speedy trial period has expired.” State v. Williams, 791 So.2d 1088, 1091 (Fla. 2001) (emphasis added).
- In State v. Clifton, 905 So.2d 172 (Fla. 5th DCA 2005), the Fifth District Court of Appeal concluded that:
[T]he state may not circumvent the purpose and intent of the speedy trial rule by: 1) entering a nolle prosequi of the charges and waiting to refile them until after the speedy trial period has expired; 2) voluntarily dismissing the charges before they are formally filed and filing formal charges after the time limit has expired; or 3) taking no action after the defendant is arrested and waiting until after the speedy trial period has expired to file formal charges. In these instances, the state has essentially abandoned the prosecution and the recapture provisions of the rule do not apply, with the result that the defendant must be discharged.” Clifton, 905 So. 2d at 176 (emphasis added).
- In view of the decisions in Williams and Clifton, Defendant is entitled to an immediate and permanent discharge from the crimes alleged in the above-styled cause.
WHEREFORE, Defendant requests that this Honorable Court forever discharge Defendant from the crimes charged in the above-styled cause.