FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
for Writ of Prohibition, Morgan Laur Reinman, Respondent
Benjamin Deriso, Orlando, pro se.
Jo Bondi, Attorney General, Tallahassee, and Marjorie
Vincent-Tripp, Assistant Attorney General, Daytona Beach, for
Deriso, the defendant in a felony case pending below in
Brevard County, petitions for a writ of prohibition, alleging
that the State violated his right to a speedy trial. As we
outline below, Deriso is correct. Therefore, we grant his
August 25, 2015, the State filed an information charging
Deriso with one count of acquiring a controlled substance by
misrepresentation, fraud, forgery, deception, or subterfuge
in violation of section 893.13(7)(a), Florida Statutes
(2014). On July 15, 2016, Deriso, who at all times relevant
has been a prisoner in Florida in state custody for an
unrelated conviction, filed a demand for speedy trial
pursuant to Florida Rule of Criminal Procedure 3.191(b). That
rule provides, in pertinent part, that "every person
charged with a crime by indictment or information shall have
the right to demand a trial within 60 days, by filing with
the court a separate pleading, entitled 'Demand for
Speedy Trial, ' and serving a copy on the prosecuting
authority." Fla. R. Crim. P. 3.191(b); accord Brown
v. State, 798 So.2d 773, 774 (Fla. 2d DCA 2001).
defendant files a demand for speedy trial, the trial court is
required to hold a calendar call within the next five days
"for the express purposes of announcing in open court
receipt of the demand" and to set the case for trial
"no less than 5 days nor more than 45 days from the date
of the calendar call." Fla. R. Crim. P. 3.191(b)(1)-(2).
Here, instead of holding the calendar call, the court entered
an order on July 22, 2016, "denying" Deriso's
demand for speedy trial, finding that "the speedy trial
rule does not apply as [Deriso] is currently a prisoner
outside the jurisdiction of [the] court." This was
error. "A prisoner in Florida in state custody may
demand speedy trial, even though he or she is not in the
jurisdiction of the court where the charge is pending."
Brown, 798 So.2d at 774 n.1 (citing Cheeks v.
Swanson, 541 So.2d 1346 (Fla. 2d DCA 1989)). Rule
3.191(b) does not require that Deriso be physically in
custody in Brevard County in order to demand speedy trial on
the charge filed there. See id.; Carter v.
State, 509 So.2d 1126, 1128 (Fla. 5th DCA 1987).
Deriso properly filed and served his demand for speedy trial,
the trial court's failure to hold the calendar call did
not toll the running of any time periods under this rule.
See Fla. R. Crim. P. 3.191(b)(3). Deriso was not
brought to trial within fifty days of filing his demand.
Thus, pursuant to rule 3.191(b)(4), this triggered
Deriso's right to pursue further relief under subdivision
(p), which provides, in pertinent part, that after the
expiration of the prescribed time period, "the defendant
may file a separate pleading entitled 'Notice of
Expiration of Speedy Trial Time, ' and serve a copy on
the prosecuting authority." Fla. R. Crim. P.
timely and properly filed his notice advising the court and
the prosecutor of the expiration of speedy trial. The trial
court was then required to hold a hearing on Deriso's
notice of expiration of speedy trial no later than five days
from the date that the notice was filed and, unless one of
the reasons set forth in subdivision (j) existed, order that
Deriso be brought to trial within ten days. See Fla.
R. Crim. P. 3.191(p)(3). This rule further provides that if,
through no fault of his or her own, a defendant is not
brought to trial within this ten-day period, then upon motion
of either the defendant or the court, the defendant is
forever discharged from the crime.
trial court did not hold the required hearing on Deriso's
notice of expiration of speedy trial time nor did it
separately order Deriso to be brought to trial. Twenty-one
days after he filed his notice of expiration of speedy trial,
Deriso filed a demand for discharge pursuant to rule
3.191(b)(4) and (p)(3). In response, the trial court entered
an order denying Deriso's demand for discharge, finding
that because Deriso had not appealed the court's earlier
denial of his demand for speedy trial, "the State was
not required to bring [Deriso] to trial within 60 days and
[Deriso's] subsequent filings are moot." This, too,
is the appropriate remedy to prevent a trial court from
proceeding against an accused after the erroneous denial of a
motion for discharge based on a violation of the speedy trial
rule." Reed v. State, 154 So.3d 455, 456-57
(Fla. 5th DCA 2014) (quoting Hill v. State, 132
So.3d 925, 930 (Fla. 1st DCA 2014)). Based on the allegations
in the petition for writ of prohibition, we ordered the State
to file a response, which it did. The State conceded that the
grounds stated by the trial court in denying both
Deriso's demand for discharge and his earlier demand for
speedy trial were not supportable. Nevertheless, the State
argues that pursuant to the "tipsy coachman"
doctrine,  the court was correct in denying
Deriso's demand for discharge pursuant to rule
3.191(j)(4) because his demand for speedy trial was invalid.
The State contends that Deriso's demand for speedy trial
was invalid because Deriso did not affirmatively represent in
the demand that he was ready for trial and Deriso had
conducted no discovery nor provided the State with a list of
his witnesses. The State's argument is based on rule
3.191(g), which provides, in pertinent part, that "[n]o
demand for speedy trial shall be filed or served unless the
accused has a bona fide desire to obtain a trial sooner than
otherwise might be provided" and that "[a] demand
filed by an accused who has not diligently investigated the
case or who is not timely prepared for trial shall be
stricken as invalid upon motion of the prosecuting
on the record of this case, we disagree with the State.
First, the prosecutor never filed a motion to strike
Deriso's demand for speedy trial as invalid. Second,
pursuant to rule 3.191(g), "[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."
Although Deriso has not engaged in discovery nor provided a
witness list, there is no requirement under Florida Rule of
Criminal Procedure 3.220(a) that a defendant participate in
discovery, and the mere fact that Deriso "decide[d] to
forego discovery in exchange for a speedy trial cannot serve
as an independent basis for striking a demand as invalid . .
. ." See Landry v. State, 666 So.2d 121, 127
(Fla. 1995); accord Martin v. State, 503 So.2d 994
(Fla. 1st DCA 1987) (stating that a demand for speedy trial
is not per se invalid simply because defendant has not
engaged in discovery). The court must look at the objective
evidence in the record to determine whether an accused's
demand for speedy trial is valid. Landry, 666 So.2d
at 128. Here, Deriso has filed no other pleadings or motions
that provide objective evidence that he has failed to
diligently investigate the case or is not prepared to go to
trial. Cf. Jones v. State, 449 So.2d 253, 262 (Fla.
1984) (finding that defendant was not prepared for trial
where seventeen defense motions were pending at the time the
demand was filed); State v. Kaufman, 421 So.2d 776,
777-78 (Fla. 5th DCA 1982) (finding that filing a demand for
discovery contemporaneously with a demand for speedy trial
and then scheduling discovery depositions is "the
antithesis of current preparedness for trial" and
suggestive that a defendant has not diligently investigated
his case and is not prepared, nor will be prepared, for trial
in five days). The subjective evaluation by the State here
that Deriso is not ready for trial is insufficient. Cf.
Landry, 666 So.2d at 128 ("The determination of
whether a speedy trial demand is valid should not involve a
subjective evaluation of trial strategy or mere second
guessing by the trial court.").
because the record in this case established that Deriso's
right to a speedy trial was violated, we grant the petition
for writ of prohibition and order the trial court to
discharge Deriso from the charge filed in Case No.
15-CF-030067, in ...