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Abuse of nolle pros after voir dire, but before the jury is sworn in - what are my options?

Orlando, FL |

We filed the notice of expiry of speedy trial after more than the 175 days for felonies. The judge granted the State an extension of speedy trial time during the recapture period to wait for a witness to get back in town. Period tolled. We appealed. Denied. Witness comes back, and we commence to trial. After voir dire but before the jury gets sworn in, the State tells the judge that they can't get hold of their witness, and are nolle prossing the case. The State technically met the speedy trial requirement, but dismissed before double jeopardy was attached. They now may refile any time within SOL. This allowed them to circumvent my speedy trial rights. Is there anything I can preemptively do, before the State refiles, to prohibit them from doing so?

Also, I suspect that the State may have acted in bad faith, since they did not fly another "essential" witness back for the case, when they indicated that that is what they were going to do. It seems as if they knew they were going to nolle pros before everything, and just went through the motions to avoid a speedy trial dismissal.

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Attorney answers 3


Talk to your attorney about your options at this stage. You cannot stop the State of Florida from bringing criminal charges. You said nothing about the nature of the charges, which plays an important role for the state in even trying to prosecute again.

R. Jason de Groot, Esq., 386-337-8239


Although you can't stop the State from refiling, that does not mean that you can not file a motion to discharge as soon as they do. There are definitely some arguments that can be made that the case should be discharged if it is refiled based on the State's violation of Florida Rule of Criminal Procedure 3.191(o) by using a Nolle Prosequi to circumvent the speedy trial rules. Of course if this motion is denied, you can always file a demand for speedy trial as soon as the State refiles which will limit them to 60 days to bring your case to trial.



Would filing for a motion to expunge or a motion to return property prompt the State to refile so I can file a motion to discharge? I'd just like to make sure double jeopardy is attached before I return to work and this entire mess starts up again.


Yeah this should not effect your demand that was filed and if the state does refile you have a good motion to dismiss.

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