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You can not waive speedy trial prior to an information or formal charges being filed?

Tampa, FL |

There are differing opinions on this matter. You can not demand a speedy trial before an information or formal charge is filed. State v. Hill, 313 So. 2d 766 (Fla. 1975). It is a nullity according to that case.So how does a waiver of speedy trial, filed before the information or formal charge, get handled? If the demand for speedy trial cannot be filed before formal charges, then how can a waiver of speedy trial be accepted before charges are filed?

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Attorney answers 4

Posted

Demanding speedy trial and waiving speedy trial are two very different acts, permissible under different rules of procedure. I don't believe the holding in the cited case would have much bearing on the validity of a pre-info waiver.

i can think of very few circumstances where a waiver of speedy trial prior to filing would be appropriate, but one of those circumstances could very well apply to your case. Without a waiver, a person must be arraigned within 90 days of arrest on a misdemeanor or 175 days for an arrest on a felony. If a waiver of speedy trial was filed, those time frames are no longer applicable. Best of luck,

Asker

Posted

Thank you for the answer. However, how can one waive speedy trial rights on charges that have not been filed? If the charges are different from the arrest charges, does the pre-info waiver apply to those charges?

Brett Nicholls Metcalf

Brett Nicholls Metcalf

Posted

You can file a waiver by citing the case number on a written document. If you did so, I believe it would apply to whatever charges were eventually filed. You can rescind your waiver of speedy trial as well. The time that has lapsed since the waiver was filed will be tolled.

Posted

I agree with my colleague, Mr. Metcalf. Waiving speedy trial and demanding speedy trial are two totally different things. Good luck.

This answer does not, nor is it intended to, create an attorney-client relationship or constitute attorney advertising. Rather, it is offered solely for informational purposes. The facts of each case are different and unique, it is critical to consult with qualified counsel with whom information can be shared and assessed under attorney-client privilege, so that competent and quality advice can be obtained on which you can make informed decisions

Asker

Posted

Thank you for your comments. So one is able to waive a speedy trial for a charge that has not been formally filed? Thus allowing the state to hold off on charging for months or even years within the statute of limitations? This seems very predudicial?

Jonathan Hackworth

Jonathan Hackworth

Posted

How did you waive speedy trial before charges have been filed? How was there a case number or court appearance on a case that had no yet been filed?

Asker

Posted

There was an arrest and release. However, no charges were ever filed and no action taken by the state. A waiver was signed shortly after the arrest and it has been almost a year. This is a 2nd degree misdemeanor and accused was just contacted about it and it looks like the state is deciding whether or not to charge before the statute of limitations is up. The time to be charged was not waived, the trial was and through this all, the accused could not demand a speedy trial because there was no formal charge, so how can they waive the speedy trial? If they miss the statute of limitations window, the state could just up the charge and force her to plea? Is this legal and is it prejudicial to an accused person? I know this probably takes some research but thank you again.

Jonathan Hackworth

Jonathan Hackworth

Posted

Did you waive your right to speedy trial at arraignment?

Asker

Posted

Thank you for the follow up. There was a first appearence where bond and bond conditions were set. Speedy trial was waived two days later.

Posted

The right to speedy trial is a right granted you by the Constitution and by Rules of Civil Procedure and one that can be waived. Rule 3.191 of the Florida Rules of Criminal Procedure sets the following time limits: In felony cases the trial must commence within 175 days from date the defendant was taken into custody. In misdemeanor cases the trial must commence within 90 days from date the defendant was taken into custody. The facts you have set-forth indicate that someone was arrested and therefore, the clock on the speedy trial without demand began to run. For whatever reason, the defendant waived that right and told the State it was okay to take its time in making a charging decision. You have said that you cannot demand speedy trial before formal charges and that is correct however, you should be able to withdraw your waiver of speedy trial by sending a letter to the State Attorney. You may ultimately have to argue this in withdrawal before the judge (if the State files charges). Keep in mind, The 6th amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions, the accused has a right to a speedy trial. The right attaches at the time of arrest or indictment whichever comes first. Long delays before arrest or indictment are governed by the due process clause (this covers situations where the government’s delays prejudice the defendant because evidence is lost or witnesses have died). The constitutional right to speedy trial is available even if a defendant waives the statutory speedy trial. Speedy trial claims are determined under a balancing test where no single factor is either necessary or sufficient to finding a violation. The remedy for violation of the constitutional speedy trial right is dismissal.

Asker

Posted

Wow, thank you for the detailed response. The waiver of speedy trial was only signed to allow the state attorney some time to really look at what happened and hoping they would not file charges. It has been near 1 year now. Here is a bit more detail: There was an arrest and release. However, no charges were ever filed and no action taken by the state. A waiver was signed shortly after the arrest and it has been almost a year. This is a 2nd degree misdemeanor and accused was just contacted about it and it looks like the state is deciding whether or not to charge before the statute of limitations is up. If the statute of limitations runs out, can the state simply change the charge to a felony and force a plea deal? The speedy trial was created so the accused would not suffer unjust wait periods, this seems like an abuse of the apparent discretion given when a waiver of speedy trial is given prior to the filing of charges?

Posted

My colleagues are giving you good answers and of course most people don't realize there is a difference between waiving speedy trial and demanding speedy trial. I once had a lawyer "friend" who seemed to think I was crazy when I suggested this and told her to go read the rule if you really want to figure this out. But what I can't get past about this question is, how and why it would even come up? Is it because you want to waive speedy trial before you're charged? Doesn't make much sense to me because all you'd be doing is cheating yourself out of what little benefit there is left in the speedy trial rule, which is another thing many people don't understand, there is very little utility left in the speedy trial rule after the Florida legislature gutted it years ago. Not only that, but here's a person who has gone out and found a case that at least touches on part of his question. Why? Are you interested in seeing if the lawyers on this site are on the ball, or just wasting everybody's time??? If there's a real question in here, what might it be???