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Entities seek more time to comment on proposed changes to the speedy trial rule

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The Criminal Law Section and the Criminal Procedural Rules Committee are asking for more time to comment on a proposal by the Supreme Court’s Criminal Court Steering Committee that critics say would “abrogate” the speedy trial rule.

As word of the proposal spreads, the criminal trial bar is expressing concern about the substance of the proposed amendments and how they are being fast-tracked by the steering committee.

During an informal briefing with steering committee members at the Bar’s Fall Meeting in Tampa, Criminal Law Section Chair-elect Warren Lindsey lamented that section members only became aware of the proposal as the window for filing a formal comment is about to close.

“This is the Criminal Law Section of The Florida Bar, and these are people who have their ears to the ground, be it prosecutors, law professors, or whatever, and there was a concern that the normal deliberative process of the Bar, going through the various relevant committees…were gone around,” Lindsey said.

Judge HankinsonSteering Committee Chair and Second Judicial Circuit Judge James Hankinson assured Lindsey that all parties would be given an opportunity to respond.

“I’ll paraphrase slightly, but the steering committee was established for the purpose of developing expedited recommendations to the Supreme Court,” Hankinson said. “Everyone will be given an opportunity to respond, but it will be a response to the Supreme Court as part of the petition.”

The Supreme Court posted a formal notice of proposed amendments to Rule 3.191 Speedy Trial and Rule 3.134 Time for Filing Formal Charges in the News, which was posted online October 17 and appears in the November hard copy of the publication. The notice sets a December 2 deadline for filing formal comments and gives the Steering Committee until December 23 to respond to any comments filed.

How to respond to the Supreme Court’s referral for comment dominated the agenda at an October 18 meeting of the Criminal Procedure Rules Committee (CPRC) in Tampa.

After a lengthy discussion, the CPRC agreed unanimously to ask the Supreme Court for an extension of time “so that the committee can fully vet, and thoughtfully comment on,” the steering committee’s proposed amendments.

Saying the proposed amendments would “abrogate” the speedy trial rule, one CPRC member said he was frustrated that such a substantial change wasn’t going through the normal rule amendment process.

“Should we comment on this rule?” said 11th Circuit Judge Richard Hersch. “Well, yeah, it’s the most significant change in the speedy trial rule in 30 years, so I think so.”

The speedy trial clause of the Sixth Amendment of the U.S. Constitution says that “[i]n all prosecutions the accused shall enjoy the right to a speedy and public trial.” The Florida Constitution also contains a speedy trial provision.

Legal scholars say the concept predates the Magna Carta and is designed, in part, to protect citizens from undue and oppressive incarceration before trial and to minimize the anxiety and concern that arises from a public accusation.

One of the most significant changes the steering committee is proposing would allow the speedy trial clock to start running from the time a defendant is indicted, or a prosecutor files an information, instead of from the time when the defendant is arrested.

The result, critics say, is that prosecutors could arrest a suspect and then wait years, or until just prior to the statute of limitations, to file formal charges.

The CPRC is asking that the comment period be extended until March 1. The Criminal Law Section intends to ask for an extension until April 1. The Florida Public Defender Association is also preparing a formal response.

According to Steering Committee records, the Florida Supreme Court asked for a review of the speedy trial rule in March based on concerns raised by the dissent in Born-Suniaga v. State, 256 So. 3d 783 (Fla. 2018).

In his dissent, Justice Alan Lawson expressed his concern that “the existing procedural speedy trial rule significantly truncates the statute of limitations for various crimes, thus creating a separation of powers issue,” according to a steering committee summary.

Born-Suniaga was arrested for misdemeanor battery, booked into jail, and bonded out the following day, according to court records. Then, 92 days after his arrest, the state filed an information charging him with felony witness tampering and misdemeanor battery. The state asked the clerk and the sheriff to issue and serve a capias, but for reasons unknown, the clerk sealed the case and the capias was not served.

Born-Suniaga argued in a motion for discharge that the state was not entitled to the 15-day recapture window in the speedy trial rule because the state had not notified him within 175 days of his arrest that the felony had been filed. The trial judge agreed.

The Fourth District Court of Appeal ruled that Born-Suniaga should have filed a notice of expiration, not a motion for discharge. But the Supreme Court majority agreed with the trial court that the state was not entitled to the recapture window.

In addition to raising separation of powers concerns, Lawson’s dissent contends that the majority opinion in Born-Suniaga misread the speedy trial rule, and that the decision has allowed too many suspects to avoid prosecution.

“It is clear from this Court’s opinions and from other appellate decisions applying this Court’s precedent, that the 175-day period has been used as a substantive permanent bar to prosecution, and without affording the State a recapture period, in cases involving charges of theft, assault, drug trafficking, armed robbery, sex crimes against children, and murder,” Lawson wrote.

After the CPRC meeting, committee member Carlton “Duke” Fagan said he agreed with other critics that the proposed changes would “completely abrogate” the speedy trial rule. Fagan stressed that he was not speaking for the committee.

“Trying to correlate speedy trial with the statute of limitations is like trying to say you’ve got to fry shrimp in the same amount of time you’ve got to fry chicken; it’s really two different doctrines,” Fagan said. “This rule would set back basic rights 1,000 years.”

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