State v. McIntyre

District Court of Appeal of Florida

State v. McIntyre

10 So. 3d 705, 2009 Fla. App. LEXIS 6529, 2009 WL 1490831

CourtDistrict Court of Appeal of Florida

DecidedMay 29, 2009

Docket5D08-2121

StatusPublished

This text of 10 So. 3d 705 (State v. McIntyre) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. McIntyre, 10 So. 3d 705, 2009 Fla. App. LEXIS 6529, 2009 WL 1490831 (Fla. Ct. App. 2009).

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Opinion

COBB, W., Senior Judge.

The State has appealed the trial court’s order of discharge of the defendant McIntyre (charged with four counts of sexual battery on a child under twelve) based upon the trial court’s finding that his right to a speedy trial had been violated.

The legal issue presented is whether a .criminal defendant who waives speedy trial by a last-minute motion for a psychiatric evaluation 1 can subsequently obtain a discharge under the speedy trial rule in the absence of any constitutional claim and without the subsequent filing of any procedural demand for speedy trial. The answer to that question is no. See State v. Naveira, 873 So.2d 300 (Fla.2004); Szembruch v. State, 910 So.2d 372 (Fla. 5th DCA 2005); State v. Gibson, 783 So.2d 1155 (Fla. 5th DCA 2001).

This case is distinguishable from State v. Agee, 622 So.2d 473 (Fla.1993), which is relied upon by the Appellee. In Agee there was no waiver by the defendant of his procedural light to a speedy trial. Given the instant waiver and absence of subsequent demand for a speedy trial, and despite an intervening nolle pros and refilling, we agree with the State that this action was not barred.

REVERSED and REMANDED for trial.

TORPY and LAWSON, JJ., concur.

1

. At the time this motion was granted the trial court noted that it constituted a waiver of the speedy trial rule and the defense has never contended otherwise. See Fla. R. Crim. P. 3.191(j)(2) and (k); see also State v. Thomas, 988 So.2d 1280 (Fla. 5th DCA 2008).

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COBB, W., Senior Judge.

The State has appealed the trial court’s order of discharge of the defendant McIntyre (charged with four counts of sexual battery on a child under twelve) based upon the trial court’s finding that his right to a speedy trial had been violated.

The legal issue presented is whether a .criminal defendant who waives speedy trial by a last-minute motion for a psychiatric evaluation 1 can subsequently obtain a discharge under the speedy trial rule in the absence of any constitutional claim and without the subsequent filing of any procedural demand for speedy trial. The answer to that question is no. See State v. Naveira, 873 So.2d 300 (Fla.2004); Szembruch v. State, 910 So.2d 372 (Fla. 5th DCA 2005); State v. Gibson, 783 So.2d 1155 (Fla. 5th DCA 2001).

This case is distinguishable from State v. Agee, 622 So.2d 473 (Fla.1993), which is relied upon by the Appellee. In Agee there was no waiver by the defendant of his procedural light to a speedy trial. Given the instant waiver and absence of subsequent demand for a speedy trial, and despite an intervening nolle pros and refilling, we agree with the State that this action was not barred.

REVERSED and REMANDED for trial.

TORPY and LAWSON, JJ., concur.

1

. At the time this motion was granted the trial court noted that it constituted a waiver of the speedy trial rule and the defense has never contended otherwise. See Fla. R. Crim. P. 3.191(j)(2) and (k); see also State v. Thomas, 988 So.2d 1280 (Fla. 5th DCA 2008).

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10 So. 3d 705, 2009 Fla. App. LEXIS 6529, 2009 WL 1490831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcintyre-fladistctapp-2009.

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