State v. Cappetta

395 So. 2d 283, 1981 Fla. App. LEXIS 18986

Opinion

PER CURIAM.

The order under review which dismisses the state’s new information filed subsequent to, and in purported compliance with, our decision reversing the defendant’s prior conviction in this cause, Cappetta v. State, 380 So.2d 1303 (Fla. 3d DCA 1980), is reversed and the cause is remanded to the trial court for further proceedings upon a holding that: (a) the said information was not barred by double jeopardy because the defendant’s prior successful appeal in this cause waived any subsequent claim of double jeopardy against the filing of the new information herein, Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); State ex rel. Cacciatore v. Drumbright, 116 Fla. 496, 156 So. 721, 725 (1934); and (b) the said information was not barred by a speedy trial claim as the state was not obliged to obtain an extension of the speedy trial limits set by Fla.R.Crim.P. 3.191, pending the defendant’s prior appeal in this cause, and said time limits were in no way running during the pendency of said appeal. See Fla.R.Crim.P. 3.191(d)(2), (g).

Reversed and remanded.