Criminal Defense
Since 1993
Since 1993
Speedy Trial Not Tolled by a Nolle Pros
I recently defended a hotly contested aggravated battery case where the state was unable to produce a key witness, so they nolle prossed (dropped) the case on the day of trial during jury selection, but before a jury could be sworn in. The alleged victim found out about the dropped charges, went ballistic, and demanded a refile, to which the State, unfortunately, had no back bone and complied with the request.
Now, here’s some stuff that is obvious to a criminal defense attorney in Orlando, but not so obvious to the rest of the readers out there–lesson no. 1–do not waive speedy trial unless you absolutely have to. Why? Because of cases like this. Because the court system in Orlando is overwhelmed, thus making speedy trial issues more important. I did not waive my client’s right to a speedy trial, so that the state only had approximately 175 days to bring my client to trial. They nolle prossed the case before speedy expired, but re-filed charges after said time period.
I filed a “Motion to Discharge for Failure to File Charges Within Speedy Trial Period”, and based my motion in part upon State v. Agee, 622 So.2d 473 (Fla. 1993), a Florida Supreme Court case which stands for the proposition that “[t]o allow the State to unilaterally toll the running of the speedy trial period by entering a nol pros would eviscerate the rule–a prosecutor with a weak case could simply enter a nol pros while continuing to develop the case and then refile charges based on the same criminal episode months or even years later, thus effectively denying the accused the right to a speedy trial while the State strengthens its case.” Agee, at 475.
Technically, the speedy trial rule is satisfied under Rule 3.191(c) when a trial jury panel is sworn for voir dire, as happened in my case, and thus it was the state’s position that speedy trial was satisfied by our jury selection (even though no jury was sworn). My motion successfully argued that the State cannot unilaterally satisfy the speedy trial period by indulging a few minutes of voir dire questioning before voluntarily entering their nolle prosequi. The motion to discharge was granted, arrest warrant on the refile quashed– chalk one up for the good guys.