| 1 | A bill to be entitled |
| 2 | An act relating to criminal trials; amending s. 918.015, |
| 3 | F.S.; providing legislative findings and intent concerning |
| 4 | speedy trial requirements; specifying periods for |
| 5 | commencement of a trial absent a demand for a speedy |
| 6 | trial; specifying periods for commencement of a trial when |
| 7 | a demand for a speedy trial is made; providing grounds for |
| 8 | denial of such a motion; providing for vacation of such a |
| 9 | motion upon good cause; providing for extensions of time; |
| 10 | providing requirements for a speedy trial motion; |
| 11 | providing for dismissal of charges if a defendant is not |
| 12 | brought to trial within the time period prescribed by the |
| 13 | court; providing requirements for motions for dismissal; |
| 14 | providing limitations on refiling of charges following a |
| 15 | dismissal without prejudice; providing requirements for |
| 16 | orders dismissing charges with prejudice; providing |
| 17 | factors to be considered in determining whether charges |
| 18 | should be dismissed with prejudice; providing for |
| 19 | determination of whether a defendant is available for |
| 20 | trial for purposes of speedy trial provisions; providing |
| 21 | for application of provisions to prisoners outside the |
| 22 | jurisdiction; providing for applicability when a defendant |
| 23 | is charged with both felony and misdemeanor offenses; |
| 24 | providing for the effect of appeals; providing for retrial |
| 25 | after declaration of a mistrial; providing for application |
| 26 | to new or refiled charges after timely nolle prosequi; |
| 27 | deleting reference to a rule of the Supreme Court |
| 28 | concerning speedy trials; amending s. 985.35, F.S.; |
| 29 | providing that adjudicatory hearings for juveniles must be |
| 30 | held in accordance with a specified statute relating to |
| 31 | speedy trials rather than according to specified court |
| 32 | rules; creating s. 985.36, F.S.; providing a time period |
| 33 | for juvenile adjudicatory hearings; providing for |
| 34 | extensions of time; providing for waiver of speedy trial |
| 35 | period; providing for motions for speedy trial; providing |
| 36 | for motions for dismissal; providing for dismissal of |
| 37 | charges if a juvenile is not brought to trial within the |
| 38 | time period prescribed by the court; providing |
| 39 | requirements for motions for dismissal; providing |
| 40 | limitations on refiling of charges following a dismissal |
| 41 | without prejudice; providing requirements for orders |
| 42 | dismissing charges with prejudice; providing factors to be |
| 43 | considered in determining whether charges should be |
| 44 | dismissed with prejudice; providing for determination of |
| 45 | whether a juvenile is available for trial for purposes of |
| 46 | speedy trial provisions; providing of tolling of speedy |
| 47 | trial period during the determination of a juvenile's |
| 48 | competency; providing for the effect of a declaration of a |
| 49 | mistrial, an appeal, or an order for a new trial; |
| 50 | providing for application to new or refiled charges after |
| 51 | timely nolle prosequi; repealing Rule 3.191, Florida Rules |
| 52 | of Criminal Procedure, relating to speedy trials; |
| 53 | providing a contingent effective date. |
| 54 |
|
| 55 | WHEREAS, Section 16, Article I of the State Constitution |
| 56 | and the Sixth Amendment to the United States Constitution |
| 57 | provide persons accused of crimes a right to speedy trial, and |
| 58 | WHEREAS, the United States Supreme Court has explicitly |
| 59 | stated that there is "no constitutional basis for holding that |
| 60 | the speedy trial right can be quantified into a specified number |
| 61 | of days or months." (Barker v. Wingo, 407 U.S. 514, 523 (1972)), |
| 62 | and |
| 63 | WHEREAS, the Legislature finds that there is no basis in |
| 64 | the State Constitution or the United States Constitution to |
| 65 | permanently and forever discharge a defendant for a crime based |
| 66 | solely upon the expiration of strict time limits for criminal |
| 67 | prosecutions when no substantive violation of the constitutional |
| 68 | right to speedy trial has occurred, and |
| 69 | WHEREAS, the Legislature finds that Rule 3.191, Florida |
| 70 | Rules of Criminal Procedure, creates time periods for a speedy |
| 71 | trial far stricter than necessary and that require courts to |
| 72 | dismiss prosecutions against accused criminals who have suffered |
| 73 | neither a violation of a constitutional right nor an unfair |
| 74 | trial, and |
| 75 | WHEREAS, the Legislature finds that Rule 3.191, Florida |
| 76 | Rules of Criminal Procedure, is substantive in character by |
| 77 | expanding a criminal defendant's right to speedy trial to a |
| 78 | right to be forever discharged from his or her crime if not |
| 79 | tried within a specific number of days and to attach that right |
| 80 | upon a person's arrest even where the state attorney declines to |
| 81 | file formal charges pending further investigation, NOW, |
| 82 | THEREFORE, |
| 83 |
|
| 84 | Be It Enacted by the Legislature of the State of Florida: |
| 85 |
|
| 86 | Section 1. Section 918.015, Florida Statutes, is amended |
| 87 | to read: |
| 88 | 918.015 Right to speedy trial.- |
| 89 | (1) RIGHT.-In all criminal prosecutions the state and the |
| 90 | defendant shall each have the right to a speedy trial. |
| 91 | (2) FINDINGS; INTENT.-The Legislature finds that Rule |
| 92 | 3.191, Florida Rules of Criminal Procedure, is substantive in |
| 93 | character in every respect where it compels strict enforcement |
| 94 | of time periods for prosecutions of persons accused of crimes, |
| 95 | where it grants the benefits of its provisions to persons upon |
| 96 | arrest or service of a notice to appear, regardless of whether |
| 97 | formal charges are filed, where it continues application of the |
| 98 | time limitations where the state enters a nolle prosequi of the |
| 99 | charge, and where it operates to circumvent and preclude the |
| 100 | filing for formal charges within the statute of limitations |
| 101 | periods for appropriate offenses. To the extent that these and |
| 102 | all other substantive effects of rules of court regarding the |
| 103 | speedy trial of persons charged with crimes expand, alter, or |
| 104 | enlarge the substantive right to speedy trial, the Legislature |
| 105 | adopts the provisions of this section to govern a defendant's |
| 106 | right to speedy trial. This section shall govern unless the |
| 107 | Supreme Court declares this section or a provision thereof to be |
| 108 | procedural. In the event the Supreme Court adopts a rule of |
| 109 | procedure to replace this section, or any portion of this |
| 110 | section, such rule shall neither abridge, enlarge, or modify the |
| 111 | constitutional right to a speedy trial nor require a dismissal |
| 112 | of the charge with prejudice where no substantive violation of |
| 113 | the constitutional right to a speedy trial has occurred. It is |
| 114 | the intent of the Legislature that the principles and findings |
| 115 | described in this subsection similarly apply with respect to |
| 116 | juveniles charged with delinquent acts and to the provisions of |
| 117 | s. 985.36. |
| 118 | (3) SPEEDY TRIAL WITHOUT DEMAND.-Except as otherwise |
| 119 | provided, and subject to the limitations imposed under |
| 120 | subsections (10) and (11), a person charged with a felony by |
| 121 | indictment or information, or in the case of a misdemeanor by |
| 122 | whatever document constitutes a formal charge, shall be brought |
| 123 | to trial within the following time periods: |
| 124 | (a) Ninety days after the filing of a misdemeanor; |
| 125 | (b) One hundred eighty days after the filing of a first, |
| 126 | second, or third degree felony; |
| 127 | (c) Two hundred seventy five days after the filing of a |
| 128 | first degree felony punishable by imprisonment for a term of |
| 129 | years not exceeding life; or |
| 130 | (d) Three hundred sixty five days if the crime charged is |
| 131 | a capital felony. |
| 132 | |
| 133 | This subsection ceases to apply whenever a motion for demand for |
| 134 | speedy trial has been granted under subsection (4) or when the |
| 135 | state files a no information indicating its intent not to file |
| 136 | formal charges. |
| 137 | (4) SPEEDY TRIAL UPON DEMAND.-Except as otherwise provided |
| 138 | in this section, and subject to the limitations imposed under |
| 139 | subsections (10) and (11), a person charged with a felony by |
| 140 | indictment or information, or in the case of a misdemeanor by |
| 141 | whatever document constitutes a formal charge, may file a motion |
| 142 | with the trial court for demand for speedy trial. |
| 143 | (a) An order granting a motion for demand for speedy trial |
| 144 | requires the defendant to be brought to trial within the |
| 145 | following time periods: |
| 146 | 1. Sixty days after the filing of a misdemeanor; |
| 147 | 2. One hundred twenty days after the filing of a first, |
| 148 | second or third degree felony; |
| 149 | 3. One hundred ninety days after the filing of a first |
| 150 | degree felony punishable by imprisonment for a term of years not |
| 151 | exceeding life; or |
| 152 | 4. Two hundred seventy five days if the crime charged is a |
| 153 | capital felony. |
| 154 | (b) A motion for demand for speedy trial shall be |
| 155 | considered a pleading that the defendant is available for trial, |
| 156 | has diligently investigated the case, and is prepared or will be |
| 157 | prepared for trial within 20 days after filing the motion. If |
| 158 | granted, a motion for demand for speedy trial binds the |
| 159 | defendant and the state. No motion for demand for speedy trial |
| 160 | shall be filed or served unless the defendant has a bona fide |
| 161 | desire to obtain a trial sooner than otherwise might be |
| 162 | provided. |
| 163 | (c) A motion for demand shall be granted by the court |
| 164 | unless the court determines: |
| 165 | 1. No document constituting a formal charge has been filed |
| 166 | with the court; |
| 167 | 2. The defendant is not or will not be prepared for trial |
| 168 | within 20 days after filing the motion; or |
| 169 | 3. The factual circumstances, seriousness, or complexity |
| 170 | of the case are such that the applicable time period provided |
| 171 | under this paragraph is insufficient to allow the state or |
| 172 | defense adequate time to prepare the case for trial. |
| 173 | (d) A motion for demand for speedy trial may be refiled |
| 174 | after 30 days after a denial of a previous motion for demand for |
| 175 | speedy trial. |
| 176 | (e) An order granting a motion for a demand for speedy |
| 177 | trial may only be vacated with consent of the state or for good |
| 178 | cause shown. Good cause for vacating a demand order and granting |
| 179 | subsequent requests for continuances on behalf of the defendant |
| 180 | thereafter shall not include nonreadiness for trial, except as |
| 181 | to matters that may arise after the motion for demand for speedy |
| 182 | trial was filed and that reasonably could not have been |
| 183 | anticipated by the defendant or counsel for the defendant. |
| 184 | (5) EXTENSIONS OF TIME.-Extension of the time periods |
| 185 | under subsections (3) and (4) may be granted under the following |
| 186 | circumstances: |
| 187 | (a) Unexpected illness, unexpected incapacity, or |
| 188 | unforeseeable and unavoidable absence of a person whose presence |
| 189 | or testimony is uniquely necessary for a full and adequate |
| 190 | trial; |
| 191 | (b) A showing by the state that the case is so unusual and |
| 192 | so complex, because of the number of defendants or the nature of |
| 193 | the prosecution or otherwise, that it is unreasonable to expect |
| 194 | adequate investigation or preparation within the prescribed time |
| 195 | periods; |
| 196 | (c) A showing by the state that specific evidence or |
| 197 | testimony is not available despite diligent efforts to secure |
| 198 | it, but will become available at a later time; |
| 199 | (d) A showing by the defendant or the state of necessity |
| 200 | for delay grounded on developments that could not have been |
| 201 | anticipated and that materially will affect the trial; |
| 202 | (e) A showing that a delay is necessary to accommodate a |
| 203 | codefendant, when there is reason not to sever the cases to |
| 204 | proceed promptly with trial of the defendant; |
| 205 | (f) A showing by the state that the defendant has caused |
| 206 | major delay or disruption of preparation of proceedings, such as |
| 207 | by preventing the attendance of witnesses or otherwise; |
| 208 | (g) Other exceptional circumstances exist which, as a |
| 209 | matter of substantial justice to the defendant or the state or |
| 210 | both, require an extension; |
| 211 | (h) The state and defense have signed a stipulation for an |
| 212 | extension; |
| 213 | (i) The defendant establishes good cause to grant an |
| 214 | extension without waiving his or her right to speedy trial; or |
| 215 | (j) The court determines there exists a reasonable and |
| 216 | necessary period of delay resulting from proceedings including |
| 217 | but not limited to an examination and hearing to determine the |
| 218 | mental competency or physical ability of the defendant to stand |
| 219 | trial, for hearings on pretrial motions, for appeals by the |
| 220 | state, for DNA testing ordered on the defendant's behalf upon |
| 221 | defendant's motion specifying the physical evidence to be tested |
| 222 | under s. 925.12(2), and for trial of other pending criminal |
| 223 | charges against the defendant. |
| 224 | (6) WAIVER OF SPEEDY TRIAL PERIODS.-The time periods of |
| 225 | this section shall be deemed waived by the defendant when any of |
| 226 | the following occurs: |
| 227 | (a) A defendant who has not filed a motion for a demand |
| 228 | for speedy trial moves for a continuance. |
| 229 | (b) A defendant who has filed a motion for demand for |
| 230 | speedy trial moves for a continuance and the motion is granted. |
| 231 | (c) The defendant is unavailable for trial. |
| 232 | (d) The defendant agrees to provide substantial assistance |
| 233 | to the state or law enforcement while his or her case is |
| 234 | pending. |
| 235 | (e) The state proves by clear and convincing evidence that |
| 236 | the defendant has caused major delay or disruption of |
| 237 | preparation of proceedings, such as by preventing the attendance |
| 238 | of witnesses or otherwise. |
| 239 | (7) MOTION FOR SPEEDY TRIAL.- |
| 240 | (a) A motion for speedy trial may be filed after the time |
| 241 | periods under subsections (3) or (4), or any period of extension |
| 242 | granted by the court, have expired. |
| 243 | (b) For purposes of calculating the time periods of this |
| 244 | section, the filing date of the initial formal charging document |
| 245 | shall be the only event which commences the running of speedy |
| 246 | trial periods except as provided in subsection (10). No later |
| 247 | than 5 days after the date of filing the motion for speedy |
| 248 | trial, the court shall hold a hearing on the motion. |
| 249 | (c) A motion for speedy trial shall be granted unless it |
| 250 | is shown that: |
| 251 | 1. The failure to hold the trial is attributable to the |
| 252 | defendant, a codefendant in the same trial, or their counsel; |
| 253 | 2. The defendant was unavailable for trial; |
| 254 | 3. The applicable time period or extension granted by the |
| 255 | court has not expired; or |
| 256 | 4. The defendant is not prepared to proceed to trial |
| 257 | within 10 days after the hearing on the motion for speedy trial. |
| 258 | |
| 259 | If the court finds that none of the reasons set forth in this |
| 260 | paragraph exist, it shall grant the motion and order the |
| 261 | defendant brought to trial within 10 days unless the court in |
| 262 | its discretion authorizes a longer time period of up to 30 days. |
| 263 | (d) A defendant not brought to trial within the 10-day |
| 264 | period or other time period prescribed by the court, through no |
| 265 | fault of the defendant or the defendant's counsel, may file a |
| 266 | motion for dismissal under subsection (8). A person will be |
| 267 | considered to have been brought to trial if the trial commences |
| 268 | within the required time period. For purposes of this paragraph, |
| 269 | a trial is considered commenced when the jury panel for that |
| 270 | specific trial has been sworn after voir dire examination and |
| 271 | selection or, on waiver of a jury trial, when the proceedings |
| 272 | begin before the judge. |
| 273 | (8) MOTION FOR DISMISSAL.- |
| 274 | (a) A defendant whose motion for speedy trial has been |
| 275 | granted and who has not been brought to trial pursuant to |
| 276 | subsection (7) may file a motion for dismissal of all charges |
| 277 | pending before the court and any uncharged crime arising out the |
| 278 | same criminal episode as that before the court. A dismissal |
| 279 | granted solely due to the failure to bring the defendant to |
| 280 | trial before the expiration of the applicable time periods shall |
| 281 | be without prejudice. A motion for dismissal with prejudice may |
| 282 | be ordered if the defendant filed a motion for demand for speedy |
| 283 | trial under subsection (4) and such motion was granted, and: |
| 284 | 1. The length of delay was substantially beyond the |
| 285 | applicable time periods and has prejudiced the defendant in his |
| 286 | or her defense. Prejudice may be established where the defendant |
| 287 | can show by clear and convincing evidence that while outside |
| 288 | applicable time period, or during any extended period authorized |
| 289 | by the court, an essential witness has died or has become |
| 290 | unavailable through no fault of the defendant, the defendant's |
| 291 | counsel, or anyone acting on behalf of the defendant or his or |
| 292 | her counsel. An essential witness means a witness possessing |
| 293 | exculpatory information that cannot be provided by another |
| 294 | witness of comparable credibility, or a witness who is essential |
| 295 | to explain, identify, or introduce admissible evidence the |
| 296 | defendant intended to introduce at trial. Prejudice may also be |
| 297 | established where the defendant can show by clear and convincing |
| 298 | evidence that exculpatory evidence known to the defense during |
| 299 | the applicable time periods has been destroyed, substantially |
| 300 | degraded, lost, or become unavailable through no fault of the |
| 301 | defendant, the defendant's counsel, or anyone acting on behalf |
| 302 | of the defendant or his or her counsel; or |
| 303 | 2. The delay has otherwise constituted a substantive |
| 304 | violation of the defendant's constitutional right to a speedy |
| 305 | trial. |
| 306 |
|
| 307 | An order granting a dismissal with prejudice under this |
| 308 | paragraph must specify factual findings in support of its |
| 309 | conclusion. |
| 310 | (b)1. Charges filed by the state subsequent to a dismissal |
| 311 | without prejudice arising out the same criminal episode that was |
| 312 | the subject of dismissal may not include a new or enhanced |
| 313 | charge that was not previously dismissed. This subparagraph does |
| 314 | not prohibit amendment of the charging document as necessary to |
| 315 | correct errors or deficiencies which do not add a new charge or |
| 316 | alter the severity or substance of the charged offense. |
| 317 | 2. If a nolle prosequi is filed after the expiration of |
| 318 | the applicable time period under subsection (3) or subsection |
| 319 | (4) or provided in any court-prescribed extension, charges based |
| 320 | on the same criminal episode filed subsequent to such nolle |
| 321 | prosequi may not include any new or enhanced charge that was not |
| 322 | previously the subject of the nolle prosequi. This subparagraph |
| 323 | does not prohibit amendment of the charging document as |
| 324 | necessary to correct errors or deficiencies which do not add a |
| 325 | new charge or alter the severity or substance of the charged |
| 326 | offense. |
| 327 | 3. Refiled charges arising out of the same criminal |
| 328 | episode filed subsequent to a dismissal without prejudice or |
| 329 | subsequent to a nolle prosequi entered as described in |
| 330 | subparagraph 2. must be commenced within 60 days for a |
| 331 | misdemeanor offense and 120 days for a felony offense. If the |
| 332 | state fails to bring the defendant to trial on such refiled |
| 333 | charges as required under this subparagraph through no fault of |
| 334 | the defendant, the defendant's counsel, or anyone acting on |
| 335 | behalf of the defendant or his or her counsel, the court may in |
| 336 | its discretion dismiss the charge without prejudice or with |
| 337 | prejudice if the court finds good cause exists that warrants |
| 338 | permanent dismissal of the charge based on consideration of the |
| 339 | following factors: |
| 340 | a. The length of the delay. |
| 341 | b. The circumstances and reason for the delay. |
| 342 | c. The seriousness of the charge. |
| 343 | d. The degree of prejudice to the defense. |
| 344 | |
| 345 | An order dismissing a charge with prejudice under this |
| 346 | subparagraph must be in writing and supported by facts which |
| 347 | support findings that the length of the delay was unreasonable |
| 348 | and the prejudice to the defendant diminished his or her defense |
| 349 | in a material way. |
| 350 | (9) AVAILABILITY FOR TRIAL.-A defendant is unavailable for |
| 351 | trial if the defendant or his or her counsel fails to attend a |
| 352 | proceeding at which either's presence is required by this |
| 353 | section or the defendant or his or her counsel is not ready for |
| 354 | trial on the date trial is scheduled. No presumption of |
| 355 | unavailability attaches, but if the state objects to a motion |
| 356 | for speedy trial and presents any evidence tending to show the |
| 357 | defendant's unavailability, the defendant must establish, by |
| 358 | competent proof, availability during the applicable time period. |
| 359 | (10) PRISONERS OUTSIDE JURISDICTION.-A person who is in |
| 360 | federal custody or incarcerated in a jail or correctional |
| 361 | institution outside the jurisdiction of this state or a |
| 362 | subdivision thereof and who is charged with a crime by |
| 363 | indictment or information issued or filed under the laws of this |
| 364 | state is not entitled to the benefit of this section until that |
| 365 | person returns or is returned to the jurisdiction of the court |
| 366 | within which the charge in this state is pending and until |
| 367 | written notice of the person's return is filed with the court |
| 368 | and served on the prosecutor. For these persons, the time period |
| 369 | under subsection (3) commences on the date the last act required |
| 370 | under this subsection occurs and the time period under |
| 371 | subsection (4) commences on the date an order granting a motion |
| 372 | for demand for speedy trial is entered following the completion |
| 373 | of all acts required under this subsection. If the acts required |
| 374 | under this subsection do not precede the issuance of an order |
| 375 | granting a motion for demand for speedy trial, the order |
| 376 | granting the motion for demand for speedy trial is a nullity. |
| 377 | (11) CONSOLIDATION OF FELONY AND MISDEMEANOR.-When a |
| 378 | felony and a misdemeanor are consolidated for disposition in |
| 379 | circuit court, the misdemeanor shall be governed by the time |
| 380 | period applicable to the felony. |
| 381 | (12) EFFECT OF MISTRIAL; APPEAL; ORDER OF NEW TRIAL.-A |
| 382 | person who is to be tried again or whose trial has been delayed |
| 383 | by an appeal by the state or the defendant shall be brought to |
| 384 | trial within 60 days in the case of a misdemeanor and within 120 |
| 385 | days in the case of a felony after the date of declaration of a |
| 386 | mistrial by the trial court, the date of an order by the trial |
| 387 | court granting a new trial, the date of an order by the trial |
| 388 | court granting a motion in arrest of judgment, or the date of |
| 389 | receipt by the trial court of a mandate, order, or notice of |
| 390 | whatever form from a reviewing court that makes possible a new |
| 391 | trial for the defendant, whichever is last in time. If a |
| 392 | defendant is not brought to trial within the prescribed time |
| 393 | period, the defendant may file a motion for speedy trial under |
| 394 | subsection (7). |
| 395 | (13) PERIOD FOR NEW OR REFILED CHARGES AFTER TIMELY NOLLE |
| 396 | PROSEQUI.-This section does not prohibit the state from filing |
| 397 | any criminal charge subsequent to the entry of a no information |
| 398 | at any time within the statute of limitations period for such |
| 399 | offense. This section does not prohibit the refiling of any |
| 400 | original charges or any new charges subsequent to the entry of a |
| 401 | nolle prosequi when such charges are filed within the statute of |
| 402 | limitations period for such offense, if the nolle prosequi was |
| 403 | filed prior to the expiration of the time periods provided in |
| 404 | subsection (3) or subsection (4) or, in the case of an extension |
| 405 | granted by the court, prior to the expiration of the court's |
| 406 | extended time period. Filing or refiling of charges after a |
| 407 | nolle prosequi prior to the expiration of the applicable time |
| 408 | period on the previous charge shall restart the applicable |
| 409 | speedy trial time period from the same day at which it ceased |
| 410 | due to the filing of the nolle prosequi. The speedy trial period |
| 411 | for such new or refiled charges shall be the balance of days |
| 412 | remaining on the speedy trial period of the charge or charges |
| 413 | that were the subject of the nolle prosequi The Supreme Court |
| 414 | shall, by rule of said court, provide procedures through which |
| 415 | the right to a speedy trial as guaranteed by subsection (1) and |
| 416 | by s. 16, Art. I of the State Constitution, shall be realized. |
| 417 | Section 2. Subsection (1) of section 985.35, Florida |
| 418 | Statutes, is amended to read: |
| 419 | 985.35 Adjudicatory hearings; withheld adjudications; |
| 420 | orders of adjudication.- |
| 421 | (1) The adjudicatory hearing must be held as soon as |
| 422 | practicable after the petition alleging that a child has |
| 423 | committed a delinquent act or violation of law is filed and in |
| 424 | accordance with s. 985.36 the Florida Rules of Juvenile |
| 425 | Procedure; but reasonable delay for the purpose of |
| 426 | investigation, discovery, or procuring counsel or witnesses |
| 427 | shall be granted. If the child is being detained, the time |
| 428 | limitations in s. 985.26(2) and (3) apply. |
| 429 | Section 3. Section 985.36, Florida Statutes, is created to |
| 430 | read: |
| 431 | 985.36 Juvenile right to speedy trial.- |
| 432 | (1) TIME.-If a petition has been filed alleging a juvenile |
| 433 | to have committed a delinquent act, the juvenile shall be |
| 434 | brought to an adjudicatory hearing within 90 days after the |
| 435 | earlier of the following: |
| 436 | (a) The date the juvenile was taken into custody; or |
| 437 | (b) The date of service of the summons that is issued |
| 438 | when the petition is filed. |
| 439 | (2) EXTENSIONS OF TIME.-Extension of the time period under |
| 440 | subsection (1) may be granted under the following circumstances: |
| 441 | (a) Unexpected illness, unexpected incapacity, or |
| 442 | unforeseeable and unavoidable absence of a person whose presence |
| 443 | or testimony is uniquely necessary for a full and adequate |
| 444 | trial; |
| 445 | (b) A showing by the state that the case is so unusual and |
| 446 | so complex, because of the number of persons charged or the |
| 447 | nature of the prosecution or otherwise, that it is unreasonable |
| 448 | to expect adequate investigation or preparation within the |
| 449 | prescribed time period; |
| 450 | (c) A showing by the state that specific evidence or |
| 451 | testimony is not available despite diligent efforts to secure |
| 452 | it, but will become available at a later time; |
| 453 | (d) A showing by the defense or the state of necessity for |
| 454 | delay grounded on developments that could not have been |
| 455 | anticipated and that materially will affect the trial; |
| 456 | (e) A showing that a delay is necessary to accommodate a |
| 457 | codefendant, when there is reason not to sever the cases to |
| 458 | proceed promptly with trial of the juvenile; |
| 459 | (f) A showing by the state that the juvenile has caused |
| 460 | major delay or disruption of preparation of proceedings, such as |
| 461 | by preventing the attendance of witnesses or otherwise. |
| 462 | (g) Other exceptional circumstances exist which, as a |
| 463 | matter of substantial justice to the juvenile or the state or |
| 464 | both, require an extension; |
| 465 | (h) The state and defense have signed a stipulation for an |
| 466 | extension; |
| 467 | (i) The juvenile establishes good cause to grant an |
| 468 | extension without waiving his or her right to speedy trial; or |
| 469 | (j) The court determines there exists a reasonable and |
| 470 | necessary period of delay resulting from proceedings including |
| 471 | but not limited to an examination and hearing to determine the |
| 472 | mental competency or physical ability of the juvenile to stand |
| 473 | for the adjudicatory hearing, for hearings on pretrial motions, |
| 474 | for appeals by the state, and for adjudicatory hearings of other |
| 475 | pending charges against the juvenile. |
| 476 | (3) WAIVER OF SPEEDY TRIAL PERIODS.-The time periods of |
| 477 | this section shall be deemed waived by the juvenile when any of |
| 478 | the following occurs: |
| 479 | (a) The juvenile moves for a continuance. |
| 480 | (b) The juvenile is unavailable for trial. |
| 481 | (c) The juvenile agrees to provide substantial assistance |
| 482 | to the state or law enforcement while his or her case is |
| 483 | pending. |
| 484 | (d) The state proves by clear and convincing evidence that |
| 485 | the juvenile has caused major delay or disruption of preparation |
| 486 | of proceedings, such as by preventing the attendance of |
| 487 | witnesses or otherwise. |
| 488 | (4) MOTION FOR SPEEDY TRIAL.-A motion for speedy trial may |
| 489 | be filed after the time period under subsection (1) or any |
| 490 | period of extension granted by the court has expired. No later |
| 491 | than 5 days after the date of filing the motion for speedy |
| 492 | trial, the court shall hold a hearing on the motion. A motion |
| 493 | for speedy trial shall be granted unless it is shown that: |
| 494 | (a) The failure to hold the adjudicatory hearing is |
| 495 | attributable to the juvenile, a codefendant in the same case, or |
| 496 | their counsel; |
| 497 | (b) The juvenile was unavailable for trial; |
| 498 | (c) The time period or extension granted by the court has |
| 499 | not expired; or |
| 500 | (d) The juvenile is not prepared to proceed to trial |
| 501 | within 10 days after the hearing on the motion for speedy trial. |
| 502 | |
| 503 | If the court finds that none of the reasons set forth in this |
| 504 | subsection exist, it shall grant the motion and order the |
| 505 | juvenile to be brought to an adjudicatory hearing within 10 |
| 506 | days. A juvenile not brought to his or her adjudicatory hearing |
| 507 | within the 10-day period, through no fault of the juvenile or |
| 508 | the juvenile's counsel, may file a motion for dismissal under |
| 509 | subsection (5). A juvenile will be considered to have been |
| 510 | brought to his or her adjudicatory hearing if the hearing |
| 511 | commences within the required time period. For purposes of this |
| 512 | subsection, the adjudicatory hearing is considered commenced |
| 513 | when the proceedings begin before the judge. |
| 514 | (5) MOTION FOR DISMISSAL.- |
| 515 | (a) A juvenile whose motion for speedy trial has been |
| 516 | granted and who has not been brought to an adjudicatory hearing |
| 517 | under subsection (4) may file a motion for dismissal of the |
| 518 | petition pending before the court and any uncharged delinquent |
| 519 | act arising out the same criminal episode as that before the |
| 520 | court. If the state failed to bring the juvenile to an |
| 521 | adjudicatory hearing as required under subsection (4) through no |
| 522 | fault of the juvenile or the juvenile's counsel, the court may |
| 523 | in its discretion dismiss the charge without prejudice or with |
| 524 | prejudice if the court finds good cause exists which warrants |
| 525 | permanent dismissal of the charge based on consideration of the |
| 526 | following factors: |
| 527 | 1. The length of the delay. |
| 528 | 2. The circumstances and reason for the delay. |
| 529 | 3. The seriousness of the charge. |
| 530 | 4. The degree of prejudice to the defense. |
| 531 | |
| 532 | An order dismissing a charge with prejudice under this paragraph |
| 533 | must be in writing and supported by facts which support findings |
| 534 | that the length of the delay was unreasonable and the prejudice |
| 535 | to the defendant diminished his or her defense in a material |
| 536 | way. |
| 537 | (b)1. Charges filed by the state subsequent to a dismissal |
| 538 | without prejudice arising out the same criminal episode that was |
| 539 | the subject of dismissal may not include any new or enhanced |
| 540 | charge that was not previously dismissed. This subsection does |
| 541 | not prohibit amendment of the petition as necessary to correct |
| 542 | errors or deficiencies which do not add a new charge or alter |
| 543 | the severity or substance of the charged offense. |
| 544 | 2. If a nolle prosequi is filed after the expiration of |
| 545 | the time period specified in subsection (1), charges based on |
| 546 | the same criminal episode filed subsequent to such nolle |
| 547 | prosequi may not include any new or enhanced charge that was not |
| 548 | previously the subject of the nolle prosequi. This subsection |
| 549 | does not prohibit amendment of the petition as necessary to |
| 550 | correct errors or deficiencies which do not add a new charge or |
| 551 | alter the severity or substance of the charged offense. |
| 552 | 3. Refiled charges arising out the same criminal episode |
| 553 | filed subsequent to a dismissal without prejudice or subsequent |
| 554 | to a nolle prosequi entered as described in subparagraph 2. must |
| 555 | be commenced within 60 days. If the state fails to bring the |
| 556 | juvenile to trial on such refiled charges as required under this |
| 557 | subparagraph through no fault of the juvenile or juvenile's |
| 558 | counsel, the court may in its discretion dismiss the charge |
| 559 | without prejudice or with prejudice if the court finds good |
| 560 | cause exists that warrants permanent dismissal of the charge |
| 561 | based on consideration of the following factors: |
| 562 | a. The length of the delay. |
| 563 | b. The circumstances and reason for the delay. |
| 564 | c. The seriousness of the charge. |
| 565 | d. The degree of prejudice to the defense. |
| 566 | |
| 567 | An order dismissing a petition with prejudice under this |
| 568 | paragraph must be in writing and supported by facts which |
| 569 | support findings that the length of the delay was unreasonable |
| 570 | and the prejudice to the juvenile diminished his or her defense |
| 571 | in a material way. |
| 572 | (6) AVAILABILITY FOR TRIAL.-A juvenile is unavailable for |
| 573 | trial if the juvenile or his or her counsel fails to attend a |
| 574 | proceeding at which either's presence is required by this |
| 575 | section, or the juvenile or his or her counsel is not ready for |
| 576 | the adjudicatory hearing on the date it is scheduled. No |
| 577 | presumption of unavailability attaches, but if the state objects |
| 578 | to a motion for speedy trial and presents any evidence tending |
| 579 | to show the juvenile's unavailability, the juvenile must |
| 580 | establish, by competent proof, availability during the time |
| 581 | period. |
| 582 | (7) INCOMPETENCY OF JUVENILE.-Upon the filing of a motion |
| 583 | to declare the juvenile incompetent, the speedy trial period |
| 584 | shall be tolled until a subsequent finding of the court that the |
| 585 | child is competent to proceed. |
| 586 | (8) EFFECT OF MISTRIAL; APPEAL; ORDER OF NEW TRIAL.-A |
| 587 | juvenile who is to have another adjudicatory hearing or whose |
| 588 | adjudicatory hearing has been delayed by an appeal by the state |
| 589 | or the defense shall be brought to an adjudicatory hearing |
| 590 | within 60 days after the date of declaration of a mistrial by |
| 591 | the trial court, the date of an order by the trial court |
| 592 | granting a new trial, the date of an order by the trial court |
| 593 | granting a motion in arrest of judgment, or the date of receipt |
| 594 | by the trial court of a mandate, order, or notice of whatever |
| 595 | form from a reviewing court that makes possible a new trial for |
| 596 | the respondent, whichever is last in time. If a juvenile is not |
| 597 | brought to an adjudicatory hearing within the prescribed time |
| 598 | period, the juvenile may file a motion for speedy trial under |
| 599 | subsection (5). |
| 600 | (9) PERIOD FOR NEW OR REFILED CHARGES AFTER TIMELY NOLLE |
| 601 | PROSEQUI.-This section does not prohibit the state from filing a |
| 602 | petition subsequent to the entry of a no petition at any time |
| 603 | within the statute of limitations period for such offense if the |
| 604 | person who is the subject of the petition remains under the |
| 605 | jurisdiction of the juvenile court the day a new petition is |
| 606 | filed. This section does not prohibit the refiling of any |
| 607 | original charges or any new charges subsequent to the entry of a |
| 608 | nolle prosequi when such charges are filed within the statute of |
| 609 | limitations period for such offense, if the nolle prosequi was |
| 610 | filed prior to the expiration of the time period provided in |
| 611 | subsection (1) and if the person who is the subject of the new |
| 612 | charges in the petition remains under the jurisdiction of the |
| 613 | juvenile court the day a new petition is filed. Filing or |
| 614 | refiling of charges after a nolle prosequi prior to the |
| 615 | expiration of the applicable time period on the previous charge |
| 616 | shall restart the speedy trial time period from the same day at |
| 617 | which it ceased due to the filing of the nolle prosequi. The |
| 618 | speedy trial period for such new or refiled charges shall be the |
| 619 | balance of days remaining on the speedy trial period of the |
| 620 | charge or charges that were the subject of the nolle prosequi. |
| 621 | Section 4. Rule 3.191, Florida Rules of Criminal |
| 622 | Procedure, is repealed. |
| 623 | Section 5. This act shall take effect October 1, 2010, but |
| 624 | section 4 of this act shall take effect only if this act is |
| 625 | enacted by a two-thirds vote of the membership of each house of |
| 626 | the Legislature. |