State of Florida v. Andres Hipolito

• Court: District Court of Appeal of Florida
• Decided: April 10, 2026
• Docket: 6D2025-0212
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2025-0212 Lower Tribunal No. 2022-CF-002017 _____________________________

STATE OF FLORIDA,

Appellant,

v.

ANDRES HIPOLITO,

Appellee. _____________________________

Appeal from the Circuit Court for Osceola County. Tanya Davis Wilson, Judge.

April 10, 2026

MARTIN, R. H., Associate Judge.

The State of Florida appeals the trial court’s order granting the motion of

appellee, Andres Hipolito, to forever discharge him of the crimes with which he was

charged based on an expiration of the time for speedy trial after his demand. We

have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(A).

Because neither the trial court’s written order nor its oral pronouncement

discharging Hipolito reflect the trial court made the required inquiry under Florida Rule of Criminal Procedure 3.191(p)(1) and (j) (2024),1 we reverse and remand for

further proceedings.

I. Background

The State, through the statewide prosecutor, charged Hipolito along with ten

other persons by information in July 2022 with various felony drug trafficking and

related charges. Hipolito was arrested the same month, pleaded not guilty, posted

bond, and was released. Early in the case, he waived speedy trial. After his bond

was revoked in early 2023, he remained in custody until discharged by the order now

appealed. The case was set for trial numerous times by the trial court and was

continued without objection on motion of the State and Hipolito. After again

waiving speedy trial in 2024, Hipolito moved for a continuance four times that year,

without objection from the State, with the trial court finding each time the defense

was unprepared for trial.

On August 24, 2024, Hipolito filed an “Omnibus Motion for Relief,” which

included motions to dismiss, for bond, to suppress, and for a rule to show cause.

With that motion pending, on October 21, 2024, Hipolito filed a demand for speedy

trial. The same day, he also filed a motion to sever his case from his codefendants

and an addendum and amendments to his omnibus motion. On October 23, 2024,

1 Rule 3.191 was recently amended, effective July 1, 2025. See In re Amend. to Fla. R. Crim. P. 3.191, 411 So. 3d 385 (Fla. 2025). The 2024 version applicable to this appeal is referred to throughout this opinion.

2 the trial court held the calendar call required by rule 3.191(b)(1) to address Hipolito’s

speedy trial demand. Hipolito’s counsel characterized his pending motions as

“pretty de minimis” requiring only about thirty minutes of hearing time. The State

advised the trial court that, at that time, it saw no reason to strike the speedy trial

demand if the pending motions could be heard before trial. Because the case was

already set for trial on December 9, the trial court scheduled the pending motions

initially for hearing in late November.

Three weeks later, Hipolito filed several more substantive motions. On

November 15, 2024, he filed a motion for sanctions against the State for a discovery

violation. On November 18, 2024, the trial court heard and denied Hipolito’s motion

for severance and set Hipolito’s other pending motions for hearing two days later.

The trial court held a two-hour hearing on November 20 concerning Hipolito’s

motion for sanctions and omnibus motion and denied the motion for sanctions and

motion to dismiss. At the conclusion of that hearing, Hipolito’s counsel raised a

spousal privilege issue as to the testimony of Hipolito’s wife and the need to take

her deposition. After the trial court questioned whether defense counsel was actually

ready for trial, Hipolito’s counsel sidestepped the issue and asked the trial court to

leave the case “in trial posture for right now” and said, “[n]othing else to do” before

trial. The trial court left the case on the December 9 trial calendar.

Then, on November 24, 2024, Hipolito filed two more substantive motions: a

“notice of choice of venue” seeking to have his trial moved within the Ninth Judicial

3 Circuit from Osceola County, where it had been heard since inception, to Orange

County and a motion to remove the statewide prosecutor as the prosecutorial

authority in his case for lack of jurisdiction. The latter motion sought a ruling from

the trial court that the case was outside the statutory authority of the office of

statewide prosecution and to “grant whatever other relief is necessary,” including

ruling that the state attorney was authorized to prosecute the case “during the time

remaining under speedy trial.”

On December 11, 2024, Hipolito filed a notice of expiration of speedy trial,

pursuant to rule 3.191(p)(2). The same day, he also filed a second motion for

sanctions and for a Richardson 2 hearing based on another alleged discovery violation

by the State.

On December 13, 2024, the trial court held the hearing required under rule

3.191(p)(3) to address Hipolito’s notice of expiration of speedy trial. The State

acknowledged the initial 60-day speedy trial period under rule 3.191(b)(1) had

expired and that the case was in the recapture period authorized under rule

3.191(p)(3).3 The trial court noted the trial must commence on or before January

2 Richardson v. State, 246 So. 2d 771 (Fla. 1971). 3 By administrative order in effect at the time, the Supreme Court of Florida had extended the recapture period from 10 days to 30 days. See In re COVID-19 Health & Safety Protocols & Emergency Operational Measures for Fla. App. & Trial Courts, Fla. Admin. Order AOSC21-17, Amend. 1, at 25-26 (July 29, 2021); In re COVID-19 Admin. Orders, Fla. Admin. Order No. AOSC25-37, at 2 (June 9, 2025).

4 10, 2025, and set the case for trial during the week of January 6, 2025. The trial

court inquired about pending motions. Hipolito’s counsel identified as pending the

motions for Richardson hearing, for change of venue to Orange County and to

remove the office of statewide prosecution. The trial court set these motions for

hearing on December 23.

At the December 23, 2024, hearing, the trial court denied the motion for

change of venue. During the hearing on the motion to remove the office of statewide

prosecution, the State attempted to move into evidence, through the testimony of the

investigating agent, a copy of the probable cause affidavit supporting the arrest

warrant. Hipolito’s counsel objected because the document was not the original

signed affidavit, which the agent testified was in a box in the agent’s office.

Hipolito’s counsel insisted on inspecting the original affidavit and that it be filed

with the clerk pursuant to a local administrative order. Recognizing that, to give

Hipolito’s counsel an opportunity to inspect the original affidavit, the hearing could

not proceed, and due to the substantive nature of the pending motions, the trial court

sua sponte struck Hipolito’s speedy trial demand. The trial court also ordered the

agent to file the original affidavit with the clerk by the following day, and the court

reset the case for pretrial conference on January 16 and for a trial term beginning on

January 27, 2025. Hipolito’s counsel objected to the speedy trial demand being

stricken.

5 On January 16, 2025, Hipolito filed a motion for discharge, claiming the

recapture period had expired and the trial court’s sua sponte striking of his speedy

trial demand was invalid under the Second District’s decision in McNeal v. State,

750 So. 2d 731 (Fla. 2d DCA 2000). The State filed a response, arguing the motion

for discharge should be denied because, under the factors required to be considered

in rule 3.191(j), Hipolito was not prepared to go to trial within five days of his

demand, and his motion for speedy trial was invalid due to the numerous, substantive

post-demand motions he filed and insisted be heard. The trial court heard the motion

for discharge on January 25, 2025. At that hearing, the State also argued Hipolito

should not be discharged because he had caused the delays. In a written order

entered on January 27, 2025, the trial court granted Hipolito’s motion for discharge

solely on the basis that it concluded its sua sponte striking of the speedy trial demand

was improper under McNeal.

II. Analysis

A trial court’s ruling on a motion for discharge presents mixed questions of

law and fact. Davis v. State, 286 So. 3d 170, 173 (Fla. 2019). Factual findings are

reviewed for competent, substantial evidence, while the trial court’s application of

the law to the facts is reviewed de novo. Id. at 174.

Rule 3.191(b) provides that every person charged with a crime has a right to

demand a trial within 60 days by filing a demand for speedy trial. Subdivision (g)

of the rule provides:

6 A demand for speedy trial shall be considered a pleading that the accused is available for trial, has diligently investigated the case, and is prepared or will be prepared for trial within 5 days. A demand filed by an accused who has not diligently investigated the case or who is not timely prepared for trial shall be stricken on motion of the prosecuting attorney.

Fla. R. Crim. P. 3.191(g). In McNeal, 750 So. 2d at 732, a one-paragraph opinion

with few facts, the Second District reversed an order denying a motion for discharge

when a trial court struck a speedy trial demand without any record evidence of a

motion by the prosecuting attorney. Here, the State concedes that the trial court’s

sua sponte striking of Hipolito’s speedy trial demand at the December 23 hearing

was error because the State made no motion seeking that relief.

However, as the State correctly argued below and raises on appeal, that did

not end the trial court’s inquiry on a motion for discharge. Rule 3.191(p)(1)

provides, “No remedy shall be granted to any defendant under this rule until the

court has made the required inquiry under subdivision (j).” Rule 3.191(j) provides,

in relevant part:

(j) Delay and Continuances; Effect of Motion. If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that:

*** (2) the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel;

*** (4) the demand referred to in subdivision (g) is invalid.

7 If the court finds that discharge is not appropriate for reasons under subdivisions (j)(2), (j)(3), or (j)(4), the pending motion for discharge shall be denied, provided, however, that trial shall be scheduled to commence within 90 days of a written or recorded order of denial.

As explained in Landry v. State, 666 So. 2d 121, 126 (Fla. 1995):

Subdivision (j)(4) of rule 3.191 provides the only vehicle for the trial court to consider the validity of a demand for speedy trial, absent a challenge by the State under subdivision (g). This provision serves as a safety valve to ensure that a defendant does not control the court’s docket or obtain discharge by filing a spurious demand under subdivision (b). See Jones [v. State], 449 So. 2d [253,] 262 [(Fla. 1984)] (trial court considered whether demand for speedy trial was valid after motion for discharge was filed); accord State ex rel. Hanks v. Goodman, 253 So. 2d 129 (Fla.1971) (defendant should not be discharged after expiration of speedy trial time based on demand until court determines that defendant had a bona fide desire to obtain speedy trial and accused or counsel has diligently investigated case and is prepared for trial; if these prerequisites are not met demand should be stricken as invalid). Under subdivision (j), if the court finds that the demand is invalid, the court should strike the demand, deny the motion for discharge, and schedule the trial to begin within ninety days of the denial.

Like McNeal on which the trial court relied, Landry held a trial court lacked the

authority to “deny” an accused’s speedy trial demand on its own initiative. See

Landry, 666 So. 2d at 125 (“A sua sponte denial of a demand for speedy trial does

not somehow stop the time periods set forth in subdivision (b) from running, as the

trial judge in this case obviously believed.”). Even though it relied on Landry,

McNeal makes no mention of rule 3.191(j) or any of its factors. Both the plain text

8 of rule 3.191(p) and Landry require trial courts to address the factors in rule 3.191(j)

before granting discharge.

Before granting Hipolito’s motion for discharge, rule 3.191(p) required the

trial to conduct the inquiry under subdivision (j), regardless of whether the State had

moved to strike the speedy trial demand. Neither the trial court’s written order nor

its oral pronouncement indicates the trial court analyzed any of the grounds the State

raised under rule 3.191(j). Accordingly, we reverse the order on appeal and remand

to the trial court for rehearing on Hipolito’s motion for discharge.

REVERSED and REMANDED with instructions.

TRAVER, C.J., and WOZNIAK, J., concur.

James Uthmeier, Attorney General, Tallahassee, and Richard A. Pallas, Jr., and Kaylee D. Tatman, Assistant Attorneys General, Daytona Beach, for Appellant.

Robert R. Berry, of The Law Office of Robert R. Berry, P.A., Tallahassee, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED