“What Do You Mean You’re Not Ready?” The Impact of State v. Naveira on a Defendant’s Right to a Speedy Trial
The Florida Supreme Court recently held in State v. Naveira, 29 Fla. L. Weekly S169 (April 22, 2004), that the state may file an information or indictment and provide discovery, on the last day of the 175-day speedy trial period, without worry that the case will be discharged. A majority of the court found that if the defendant is not ready for trial because the state was late filing charges, the defendant is not entitled to a continuance charged to the state nor entitled to a discharge. In a divided opinion, the court struggled between a narrow application of Fla. R. Crim. P. 3.191,1 and a more comprehensive application of the rule, and the impact each application would have on the state and on a criminal defendant’s right to a fair trial.
Naveira is a sexual battery/false imprisonment case in which the state had some sort of difficulty locating the victim. The defendant was arrested on February 15, 1999, but the state did not file an information until August 19, 1999. Discovery was provided to the defense the same day. After several hearings, the defendant was ordered to trial 11 days after the information was filed and discovery received. A defense motion for discharge was granted by the trial court, upheld by the First District Court of Appeal, but reversed by the Florida Supreme Court.2
This article will explore the efficacy of the majority of the court’s strict reading of Fla. R. Crim. P. 3.191, and its holding that a defendant who faces a trial date a mere 11 days after an information is filed and discovery provided is not entitled to a state-charged continuance or a discharge. The majority’s opinion will be contrasted with the dissent’s position that a defendant must be afforded adequate time to prepare for trial, and that discharge is the proper remedy when the state, without an adequate reason, is late in filing charges and providing discovery. The impact of the majority’s ruling on a criminal defendant’s right to a speedy trial and to conduct discovery, and possible solutions to any prejudice which may result from the ruling, will also be discussed.
The majority in Naveira began its discussion by highlighting the fact that Rule 3.191 does not impose upon the state a deadline for filing a charging document. The only parameter for filing is that no indictment or information may be filed after the speedy trial period has run. See Williams v. State, 791 So. 2d 1088 (Fla. 2001). Curiously, while citing its opinion in Reed v. State, 649 So. 2d 227 (Fla. 1995), for this same proposition, the majority seemingly glossed over the fact that although the state has no filing deadline, the Reed opinion makes it clear that the state has the burden to show a legitimate reason for any delay in filing.3
In Naveira, unlike in Reed, the trial court made little inquiry into the legitimacy of the state’s claim that the victim was not locatable for 175 days. The record of this case, as recounted in the Florida Supreme Court’s opinion, indicates only that the state had difficulty in locating the victim. The opinion is silent as to the nature of the difficulty the state encountered in locating the victim, the efforts made by the state to locate the victim during the 175 days the case was pending, and when and how the victim eventually became available so as to form a good-faith basis for the prosecution.
Thus, instead of a concern for why the defendant was not ready for trial, the majority of the Florida Supreme Court’s focus was simply on the fact that the defendant was not ready for trial. Citing subsections (j)4 and (k) of Rule 3.191,5 the majority concluded that if the defendant was not ready for trial he was, as defined in the rule, unavailable for trial and not entitled to discharge.6
The dissent in Naveira took issue with the fact that the majority’s ruling put a defendant in a position of having to choose between the right to a speedy trial, and the right to adequately prepare for trial.7 In response to this, the majority relied upon Banks v. State, 691 So. 2d 490 (Fla. 4th DCA 1997), for the proposition that the speedy trial right afforded by way of Rule 3.191 is not a constitutional right, and may be waived by a defendant like Naveira, who seeks a continuance after filing a notice of expiration of the case.8 The court elaborated upon its view of the difference between the two types of speedy trial rights. To the majority, a constitutional speedy trial right examines “reasonableness and prejudice, not specific number of days.”9
This position is ironic, for further in its opinion in Naveira, the majority recognized that a defendant’s due process right may be adversely affected by facts like those in Naveira, but that such an issue is notproperly remedied by discharge.10 Since there is no constitutional right to a trial in 175 days, it was the majority’s position that the defendant in Naveira was not forced to choose between two rights, no matter what prejudice resulted when charges were filed late.11
In contrast to this position, the dissent suggested that to properly apply Rule 3.191, several sections of the rule must be read in concert, instead of two sections in a vacuum.12 Writing for the minority, Justice Pariente confronted the majority’s concern that a discharge on the Naveira facts would entitle any defendant to a discharge any time the state is late in filing charges.13 Finding these concerns unfounded, the dissent suggested that in circumstances where the state files late, the state could seek an extension of the speedy trial period pursuant to Rule 3.191 (i) and(l).14 Only if the state could offer no exceptional circumstances for the late filing would the defendant be entitled to a discharge. In this way, the defendant is not penalized with an unreasonable amount of time to prepare for trial when the state is late in filing, and the state is not penalized when it has a legitimate reason why it could file no sooner.
In response, the majority of the court took the position that since the state was ready for trial, it should not be forced to seek an extension of time, when it does not require more time to prepare.15 This position seems to ignore, however, the fact that the state was ready for trial because it had nearly six months to prepare. The defendant, by contrast, had 11 days, as a result of the actions of the state.
Is There a Solution?
• Extension of Time
The dissent suggests that one solution to the dilemma facing a defendant in the wake of the majority opinion, is to read Rule 3.191 in its entirety, and see that the rule, as written, can allow for fairness to both sides. Under subsection (l), in cases where the state has difficulty becoming ready for trial because of exceptional circumstances, the speedy trial time may be extended.16 Applying this to the facts of Naveira, the state could have argued that the difficulties in procuring the victim for the filing of the case were exceptional circumstances that justify extending the speedy trial period. Invoking this subsection of the rule would have clarified the record as to the reason for the state’s failure to file the information. A hearing on this issue would serve two important purposes to the fairness of the proceedings. First, a hearing would give the state the opportunity to show that the delay was not a result of lack of diligence. This fact was not determined in the record of Naveira, yet is required under Rule 3.191 (l) (3), and mentioned as necessary in Reed. Simultaneously, such a hearing would have provided the defendant the opportunity to have the case discharged if the state’s late filing was strategic or the result of a lack of diligence, and not justified. Certainly the majority could not have intended to condone the state purposely waiting to file a charging document for the sole purpose of ambushing the defense at trial. Nor would the court condone late filing caused by a lack of diligence by the state. Yet, each of these scenarios could occur in the wake of the court’s ruling in Naveira.
• Redefine “Unavailable for Trial”
Justice Pariente in her dissent suggests that the rule could be amended to add language to subsection (k) specifying that a defendant not be deemed unavailable for trial if the reason for the nonreadiness is attributable to the state.17 Such an amendment, which the dissent urges the Criminal Rules Committee to consider, would avoid the inequities presented by the majority opinion, but also would require a hearing similar to one required by the invoking of subsection (l), as discussed above. The dissenting position is that the reason behind the state’s delay should dictate whether the defendant is entitled to a discharge for a late filed charging document.
• Create a Filing Deadline
In the first paragraph of the majority’s opinion, Justice Cantero notes that Rule 3.191 requires only that a defendant be brought to trial within 175 days of arrest, and poses no deadline for the filing of an information.18 Although the court did not suggest any need to create a filing deadline, consideration of such a deadline is warranted in light of the majority’s apparent concern that lack of a filing deadline leaves the state in a position of being unaware of its filing obligations.
If the state was required to file an information 80 days (or roughly half way) into the speedy trial period, failed to do so, and a discharge was granted, such an amendment would effectively shorten the speedy trial period, and would be a drastic change in procedure. However, if the state was required to file within 80 days, was entitled to one continuance, and on notice that failure to file and within 100 days would result in a discharge, such a scenario would accomplish several things.
First, it would provide the state with notice that it must file a case within 100 days of the 175-day speedy trial period. Second, it would hold the state accountable for exercising diligence in filing, and give the court reason to know the validity, or not, of any delay in filing. Under this amendment scheme, the worst-case scenario for a defendant would be his having to get ready for trial in 75 days. This is not burdensome, so long as the state has also fulfilled its discovery obligations in a timely fashion in accord with Fla. R. Crim. P. 3.220. A filing deadline would provide the state with the opportunity to confront filing difficulties without jeopardizing a defendant’s right to exercise discovery Rule 3.220.
As mentioned by Justice Pariente in her dissent, a plethora of case law has determined that unless the defendant has a fair opportunity to utilize the discovery procedures in place under the rules, he is denied a basic due process right to a fair trial.19 According to Valle v. State, 394 So. 2d 1004, 1007–08 (Fla. 1981), cited by the dissent, “[t]he law requires that each defendant have sufficient time to prepare a defense, including the opportunity to utilize available procedural discovery rules provided for that purpose.”20It is unreasonable to conclude that in 11 days’ time, a defendant could conduct depositions, assemble and list defense witnesses, procure experts, prepare and file pretrial motions, and otherwise effectively prepare for trial. It appears as though the result of the majority’s opinion in Naveira prevents a defendant from truly availing himself of discovery rules when the state files charges late in the speedy trial period.
With a majority of the Florida Supreme Court embracing a narrow view of Fla. R. Crim. P. 3.191, Florida prosecutors are free to delay the filing of criminal charges with abandon. One must hope that no prosecutor in the state would purposely delay the filing of a case so as to unfairly prejudice a defendant in preparing for trial. Yet, the decision rendered by the court in Naveira allows for that possibility. It would seem that a second look at the impact on a defendant’s right to a speedy trial and right to utilize the rules of discovery is warranted in light of this recent decision by the Florida Supreme Court.
1 Rule 3.191 is Florida’s speedy trial rule.
2 On August 24, 1999, the defendant filed a notice of expiration of the case because he was not brought to trial within 175 days of arrest. In the meantime, the court conducted a hearing on the notice of expiration on August 26, 1999, and set the case for trial on August 30.
After being assigned a trial date a mere 11 days after the information was filed and discovery was received, the defense moved, on August 27, for a continuance of the trial charged to the state, on grounds that the defendant could not reasonably be expected to be ready for a trial in such a short time frame. A hearing was not conducted on this motion until October 21, 1999. On September 9, the defendant moved for a discharge of the case, because he was not brought to trial within 15 days of his notice of expiration. On December 8, 1999, the motion for discharge was granted, because the court noted that the information was not even filed, let alone a jury sworn, within the 175-day speedy trial period. The state appealed, and the appellate court remanded the case with an opinion, which explained that the information was filed timely by one day. The court determined that date of arrest is not to be counted among the 175 days.
On remand, the trial court again discharged the case and found that the defendant’s need for a continuance was attributable to the state for late filing of the information. The court found this was so, even absent a showing of misconduct by the state. In its appeal, the state raised two issues, only one of which is addressed herein.
The state’s first issue on appeal was that on remand, it was entitled to a full 90 days to bring the defendant to trial. The court disagreed with the state’s position, because at the time of the first appeal, the trial court had not ruled on the defendant’s motion for discharge. Consequently, the case was remanded for the trial court to rule on the motion for discharge. Upon the trial court granting the discharge motion, this appeal followed.
3 Naveira, 29 Fla. L. Weekly at S171.
4 Fla. R. Crim. P 3.191 (j) (“A motion for discharge shall be granted. . . unless. . . (3) the accused was unavailable for trial under subdivision (k).”).
5 Fla. R. Crim. P. 3.191 (k) (“[A] person is unavailable for trial if. . . the person or counsel is not ready for trial on the date the trial is scheduled.”)
6 Naveira, 29 Fla. L. Weekly at S171.
7 Id. at S174-75.
8 Id. at S171-72.
9 Id. at S172 (citing Fonte v. State, 515 So. 2d 1036, 1038 n.2 (Fla. 3d D.C.A. 1987)
10 Fraser v. State, 426 So. 2d 48 (Fla. 5th D.C.A. 1982).
11 Naveira, 29 Fla. L. Weekly at S172.
12 Id. at S174.
14 Fla. R. Crim. P. 3.191(i), When Time May be Extended. “The periods of time established by this rule may be extended, provided the period of time sought to be extended has not expired at the time the extension was procured. An extension may be procured by…(2) written or recorded order of the court on the court’s own motion or the motion of either party in exceptional circumstances as hereinafter defined in subdivision (l).”
Fla. R. Crim. P. 3.191(l), Exceptional Circumstances. (“As permitted by subdivision (i) of this rule, the court may order an extension of time periods provided under this rule when exceptional circumstances are shown to exist. Exceptional circumstances shall not include general congestion of the court’s docket, lack of diligent preparation, failure to obtain available witnesses, or other foreseeable delays. Exceptional circumstances are those that, as a matter of substantial justice to the accused or the state or both, require an order by the court. These circumstances include… (1)…unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial….(3)a showing by the state that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time.”
15 Naveira, 29 Fla. L. Weekly at S172.
17 Id. at S175.
18 Id. at S169.
19 Citations omitted.
20 Naveira, Fla. L. Weekly at S174. (Emphasis added).
Victoria R. Brennan received her B.A. in English from the University of Miami undergraduate honors program in 1986. She earned her J.D. in 1989 from the University of Miami School of Law where she also served as an instructor in the advanced moot court program in 1989. Ms. Brennan was an assistant state attorney in the 11th Judicial Circuit, serving for 13 years, seven of which were spent trying homicide cases exclusively. Currently Ms. Brennan practices criminal defense with the firm of Hershoff & Lupino, LLP, in Tavernier.
This column is submitted on behalf of the Criminal Law Section, Paul H. Zachs, chair, and Georgina Jimenez-Orosa, editor.