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How can one Waive speedy trial but cannot Demand a speedy trial prior to an information being filed? Rule 3.191

Orlando, FL |

A person is arrested and released, then files a Waiver of speedy trial a few days later. No charges or information documents have been filed. 8-9 months pass (or any amount of time within the statute of limitations) and the individual wants to file a Demand for speedy trial.

However, the state did not file charges but has not "no filed" either. The requirements of the Demand for speedy trial state that the defense must be prepared for trial in 5 days. How can one be prepared, when they do not even know what the formal charge is going to be and has had no right to the discovery?

If you can not Demand a speedy trial prior to charges being filed, then how can you waive speedy trial? If the State does file an information, for an increased charge, does the initial waiver apply?

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Attorney answers 6

Posted

I have to admit that I have never heard of such a situation. Without going into the who's and why's of waiving speedy trial before an information is filed, it appears that you are in need of a criminal defense attorney. The situation that you are in is unique and problematic. If speedy has indeed been waived, the state will now operate under the statute of limitations which could give them a very long time to file, depending on the charge.

I strongly recommend that you hire a criminal defense attorney to assist you through this situation.

Asker

Posted

Thank you for your reply. It is appreciated. It seems that it would not be all that unusual for people, who are innocent or arrested for a mis-understanding, to waive their speedy trial rights in an effort to slow down the state attorney, allow the picture to develop and hope they drop or "no-file" the case. But letting the potential of a charge weigh on a person for months and months is difficult. How can you waive a speedy trial for a charge that has not been filed but you cannot demand the state to go to trial or make a decision on the case? Also, would the speedy trial waiver actually hold up given no charges were filed?

Roger Scott Jr.

Roger Scott Jr.

Posted

Speedy trial starts running from the date of arrest. It is hard to imagine how you managed to waive you rights before you were formally charged. It would be helpful if you could explain how this happened

Posted

How exactly did you waive your right to a speedy trial? You might be mistaken. You should meet with an attorney.

Asker

Posted

Mr. Scott, Thank you for your feedback and question. I really need the expertise and help. An attorney, who was brought on for representation, provided the waiver and it was signed. There was an arrest and release. The waiver was signed just a few days after after leaving the jail during an initial consult and it was submitted and appears on the official docket as a waiver of speedy trial. However, there have never been any formal charges or informations filed. Even if I had no filed the waiver, I could not demand a speedy trial as the state still has not filed the formal charge. It does not make sense that I can waive a speedy trial for a charge that has not been filed but can not demand a speedy trial....? With all the time that has past with no charge, would the waiver hold up? If speedy trial is waived right after an arrest, would it waive the need for a timely filing of charges?

Roger Scott Jr.

Roger Scott Jr.

Posted

That is very strange! Hard to believe that a lawyer would do that. If retained, I would file a motion to withdraw the waiver as filed in error. There aappears to be absolutely no reason to file that

Posted

I, like the other attorneys, have never heard of something like this. If this situation occurred as you have described it, it scares me that someone would request you waived your right to speedy trial at a point it was not necessary to do so and that you waived this right without speaking with an attorney first. You are right when you say that you could not file a demand when there has been no information filed, because the case is not ready for trial and no attorney could be prepared. I would immediately consult with an attorney. You need to be proactive about this in the event that you can salvage your rights. Moreover, you need to ensure that no more of your rights get waived.

Asker

Posted

Thank you Ms. Hill. I am surprised this has not risen to higher courts. If you can not demand a speedy trial for an arrest with no formal charges, how can you waive one? Is the waiver even ligitamate?

Posted

Sounds like you should speak with a criminal defense attorney who can look at the specifics of your situation. If a valid waiver of speedy trial was filed, the State has until the statute of limitations has passed to file charges. You are correct in that filing a "demand" for speedy trial includes a certification that you are prepared to go to trial on the case. Whether or not the inital waiver was valid would be a question that would have to be answered by an attorney that had all of the facts and circumstances in front of him.

Posted

I also question how there can be a waiver of speedy trail a few days after your arrest. A lawyer may be able to review your specific situation, make a determination as to whether there was a valid waiver of Speedy trail or not and then hopefully take appropriate steps to remedy the situation. I would encourage you to consult with an attorney regarding your situation.

Posted

A demand for speedy must be filed after the filing of the information or indictment; if it is filed before the charging document is filed, it is a nullity and will have no effect on the time period set forth in the rule. State v. Hill, 313 So. 2d 766 (Fla. 1975). The consequences of filing a waiver of speedy trial can be broad and severely prejudicial to the client. In the absence of fraud, the acts of an attorney in waiving speedy may bind his or her client even if the waiver was done without first consulting the client about such consequences. State v. Abrams, 350 So. 2d 1104 (Fla. 4th DCA 1977). You might want to consult a creative and thoughtful criminal defense lawyer who could consider all of the facts of your case which would be needed to more fully address your issue.

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