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Attorneys weigh in on effort to rewrite Florida’s speedy trial rule

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Prosecutors claim the proposal that would effectively eliminate the rule for manslaughter and murder is a compromise

Supreme CourtThe Florida Supreme Court is once again contemplating changing the state’s rule that guarantees all citizens a right to a speedy trial. But, already, not all justices appear on board with revisiting the matter.

“I think this is a solution looking for a problem,” said Justice Jorge Labarga within the first 15 minutes of Wednesday’s hour-and-a-half of oral arguments on the issue.

Labarga echoed defense attorneys, but said he was drawing upon his previous experience as a prosecutor, when the rule was even more favorable to defendants than it is today by discharging them without giving the state a chance to bring the case after the speedy trial window closed.

“I never heard of a case being discharged on speedy trial grounds, even in those days where there’s just a drop-dead deadline,” said Labarga. “It just never happened.”

To Labarga’s point, no one in Wednesday’s oral arguments could point to hard evidence that supported the court’s underlying assertion to its proposed rewrite that the current rule too readily allows guilty criminals to permanently walk freely when the state fails to bring them to trial in a timely manner.

Under the current Florida Rule of Criminal Procedure 3.191, the state must bring a case against a person accused of a felony within 175 days. After that window closes, the defendant’s attorney may file a notice of expiration. Then, the state has roughly two weeks to initiate the trial before the defendant is permanently discharged, barring the government from further pursuing the case.

The court is considering substantial changes to that rule, which would allow the state to indefinitely pursue certain homicides and eliminate the automatic trigger for dismissal of cases that aren’t tried within the established time frame. The Florida Prosecuting Attorneys Association supports the proposal but wants it to go even further. Opposing it are the Bar’s Criminal Law and Public Interest Law sections, the Florida Public Defender Association, and the Florida Association of Criminal Defense Lawyers.

This is the third time the justices are proposing to rewrite the rule after former Supreme Court Justice Alan Lawson wrote a 2018 dissent criticizing his colleagues for overreaching in using the speedy trial rule to dismiss a case in which the state filed new charges against a defendant within the correct time frame but failed to notify the defendant of those charges. The rule hasn’t been substantially changed since 1984.

Chief among critics’ concerns for this proposed rewrite is the section that would effectively eliminate the speedy trial rule for those who are accused of manslaughter or murder by requiring their dismissals to be without prejudice, allowing the state to retry the cases until their statute of limitations expire.

But these limitations don’t exist for Florida crimes resulting in death.

“That individual is now under the specter of prosecution indefinitely,” wrote the Criminal Law Section in its 25-page comment opposing the proposed changes.

 That “specter of prosecution” could hang over the accused even when the state agrees they didn’t kill anyone, since the dismissal without prejudice applies to arrests as well as charges, wrote the Public Interest Law Section in its 19-page comment criticizing the proposal.

“The fact is that police officers will sometimes charge a homicide if a death has occurred only to have prosecutors recognize that the appropriate charge is for some other offense,” the section also wrote. “Yet, the proposed rule will treat such cases as homicides.”

Twentieth Circuit State Attorney Amira Fox, appearing on behalf of the Florida Prosecuting Attorneys Association,  said that her organization believed the proposal was a compromise because they don’t believe there should even be a rule governing speedy trials in Florida, in part, because the right is already guaranteed under the state and federal constitutions.

“There are already existing protections. The defendant could make a motion for dismissal based on constitutional speedy trial, due process,” said Fox. “And we think the statute of limitations is what the Legislature put into place to say, ‘you have this amount of time to try this case.’”

Fox added, “And, certainly, in cases involving death, they’ve chosen to put in, ‘you have an unlimited amount of time to try this case.’”

Advocating for going beyond the court’s proposal, Fox said prosecutors would like to see the speedy trial clock start ticking at the time they file a charging document as opposed to when law enforcement arrests the accused. Defendants who haven’t been charged would be released from jail within 40 days, she added.

But sitting in jail awaiting a charge for 40 days will do damage enough, said Jude Faccidomo of Miami, on behalf of the Florida Association of Criminal Defense Lawyers.

“Let’s keep in mind that 40 days, especially for indigent defendants, is a lifetime,” said Faccidomo. “You can lose housing, you can lose employment, you can lose custody of your children.”

Justice Charles Canady pushed back on Faccidomo and said the defendant wouldn’t have a trial within 40 days regardless of when the speedy trial clock began, whether at arrest or at charge.

“Understandable, but at least there’s been a determination by the State Attorney’s Office that this is a case [worth] prosecuting,” said Faccidomo. “If we change it to upon the filing [of the charge], and a prosecutor just doesn’t get around to it, that person is subject to that prosecution for the extent of the statute of limitations. So, I think that’s a very real problem.”

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