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 |
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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 |
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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 |
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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. |