If you’re familiar with high-profile cases such as those of Nikolas Cruz and Donald Trump, you’ve probably heard about how these defendants waived their right to a speedy trial. This right, of course, is guaranteed in the United States Constitution within the Sixth Amendment.
Waiving this right is not particularly unusual. In many cases, this can be a strategic move, as it grants the defense more time to gather and review evidence and testimony. This enables the defendant to build a stronger case and potentially stand a better chance of succeeding at trial. On the non-legal side, this is also more time for a defendant to continue living their life (if out on bond), as well as put their affairs in order if jail or prison is a risk (since managing personal assets becomes much more difficult from behind bars).
However, this additional time can have negative effects on your case too. It is not uncommon for the State to continue to drag their feet on pushing the case forward. Prosecutors swap around at a frequent rate, forcing your attorney to completely rebuild the rapport and communication that they had already established with the previous prosecutor. Delays may also be caused by the State requesting multiple continuances because a witness is unavailable. All these elements can result in the case taking months or even years for a trial to be set, which is a longer period of time you have the charge hanging over your head. This can be made worse for defendants unable to be released on bond, since they must indefinitely remain in jail until trial.
Choosing what to do with your speedy trial rights is not a decision that should be made lightly and is best discussed with an attorney who can tailor advice to your particular case. However, it is our hope that this blog can provide you with a foundation for critically thinking through that decision.
In Florida, defendants must be brought to trial within 90 days of arrest for misdemeanors or 175 days of arrest for felonies. The same time limits apply when a defendant is served with a notice to appear instead of being arrested. These time limits may be extended under certain circumstances, such as a stipulation between the parties, a court order based on exceptional circumstances, or an administrative order issued by the Chief Justice (which was utilized during the COVID-19 pandemic and Hurricane Dorian).
If the State has formally charged a defendant with a crime via an indictment or information and the 90- or 175-day period has elapsed, the defendant can file a Notice of Expiration of Speedy Trial (assuming they have not waived their speedy trial right). This document, as the name implies, notifies both the court and prosecutor that the initial speedy trial period has expired.
This triggers what is called the “recapture period.” The court is obligated to hold a hearing on the notice within 5 days of its filing to bring the parties together and speed the trial along. The court then sets the case for trial within 10 days of the hearing. If the trial does not commence (i.e. a jury is sworn in) within that 10-day period, the defendant is entitled to be forever discharged from the crime alleged, meaning that the State loses their ability to pursue prosecution. This discharge can only be filed after the 10-day period and may be initiated by either the defendant or the court. This entire process can be illustrated in this timeline:
When a defendant is arrested but not formally charged, the process functions slightly differently. The initial 90- or 175-day period is still the same. However, once that time frame expires, the defendant can immediately file a Motion for Discharge. This is because the State is not entitled to the “recapture period” when they have not filed formal charges before the deadline. Thus, the defendant does not need to file a Notice of Expiration, shortening the process as shown here:
The two circumstances previously described occur when the speedy trial clock counts down naturally (also known as “without demand”). What, then, happens when a defendant demands a speedy trial?
The process is very similar to the first diagram shown, although distinct enough that it warrants a separate explanation. First, a defendant must file a Demand for Speedy Trial, a document indicating that the defendant has invoked their Sixth Amendment right to a speedy trial (under Florida law, such a demand means that the case must proceed to trial within 60 days). This prompts the court to hold a calendar call within five days, which is a pretrial hearing that gathers the attorneys to deal with any last-minute affairs. The case is then scheduled for trial between 5 and 45 days after the calendar call. If the trial does not commence in that time frame, the defendant files a Notice of Expiration of Speedy Trial. The rest follows a familiar path:
You may have noticed that each timeline, except for the one immediately above, begins with the phrase “Arrest/NOA Date”. There is a common myth that the speedy trial rules apply even if you haven’t been arrested or charged. While speedy trial does apply even if charges are not filed, as explained, it is not the same in cases without an arrest or notice of appearance. If you have not been served a notice of appearance or been arrested, the statute of limitations instead applies to your case. The statute of limitations period is longer than the speedy trial period and runs from the date of the alleged offense. For instance, the shortest criminal statute of limitations period is 1 year (second-degree misdemeanors). It is entirely possible for a person to be arrested for a misdemeanor, say, 120 days after it occurred, since the 90-day speedy trial period does not apply.
Hopefully, this post has given you a better understanding of your rights regarding a speedy trial. If you are faced with a decision as to whether to waive, not waive, or demand a speedy trial, you should base your choice on informed advice from a legal professional. Call the criminal law attorneys at Hendry & Parker, P.A., in Dunedin, at (727) 205-5555 today for a free consultation.