Brian S. Klein, Appellant,
The State of Florida, Appellee.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Monroe County, Lower
Tribunal No. 96-467-A-K Timothy J. Koenig, Judge.
S. Klein, in proper person.
Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellee.
LOGUE, LUCK and LINDSEY, JJ.
S. Klein, pro se, appeals the denial of his motion, which
among other things, requested to commence speedy trial.
Because this is not an appealable order, we treat the notice
of appeal and attachments thereto as a petition for writ of
prohibition. See Bory v. State, 126 So.3d 266 (Fla.
3d DCA 2010) (treating appeal of trial court's denial of
a motion seeking commencement of speedy trial as a petition
for writ of prohibition); Schuty v. State, 281 So.2d
507, 507 (Fla. 1st DCA 1973) (treating appeal from denial of
discharge on speedy grounds as writ of prohibition). For the
reasons set forth below, we deny the petition.
is serving a sentence at the Graham Correctional Center in
Hillsboro, Illinois following his conviction in Illinois
state court. According to Klein, he was convicted on June 20,
2016 in Dupage County, Illinois for possession of a stolen
motor vehicle and sentenced to eight years. In April of 2017,
Klein sent a letter to the trial court in the Sixteenth
Judicial Circuit in and for Monroe County, Florida seeking
the resolution of an outstanding warrant in the Sixteenth
Circuit for a violation of probation. Three months later,
Klein wrote a second letter specifically requesting dismissal
of the warrant. In his letters, Klein explained that he seeks
to gain admittance to a rehabilitative facility run by the
Illinois Department of Corrections and that one of the
criteria for the program is that there can be no outstanding
warrants. Klein then filed a motion entitled Motion to Demand
Speedy Trial and/or to Quash Warrant. In the motion, Klein
alleged that there is a charge against him for a violation of
probation in a 1996 case for the offense of grand theft of a
motor vehicle. Klein also asked that the warrant be quashed
and the case dismissed as any prosecution would be outside
the statute of limitations or, in the alternative, that any
sentence in Florida run concurrent with his sentence in
Illinois. The trial court entered an order denying the
motion. This appeals follows.
Rule of Criminal Procedure 3.191, which is the speedy trial
rule, provides in part:
(e) Prisoners outside Jurisdiction. A person
who is in federal custody or incarcerated in a jail or
correctional institution outside the jurisdiction of this
state or a subdivision thereof, and who is charged with a
crime by indictment or information issued or filed under the
laws of this state, is not entitled to the benefit of this
rule until that person returns or is returned to the
jurisdiction of the court within which the Florida charge is
pending and until written notice of the person's return
is filed with the court and served on the prosecutor. For
these persons, the time period under subdivision (a)
commences on the date the last act required under this
subdivision occurs. For these persons the time period under
subdivision (b) commences when the demand is filed so long as
the acts required under this subdivision occur before the
filing of the demand. If the acts required under this
subdivision do not precede the filing of the demand, the
demand is invalid and shall be stricken upon motion of the
prosecuting attorney. Nothing in this rule shall affect a
prisoner's right to speedy trial under law.
Fla. R. Crim. P. 3.191(e). Pursuant to the plain language of
Rule 3.191(e), Klein is not entitled to the benefit of
Florida's speedy trial rule until he is returned to the
jurisdiction of the State of Florida. See State v.
Bivona, 496 So.2d 130, 132 (Fla. 1986) (interpreting an
earlier version of Rule 3.191(e) to apply unqualified to
those incarcerated outside of Florida, whether the individual
is being held solely on Florida charges or on charges pending
in the other state). Because Klein is incarcerated outside
the jurisdiction of this state on charges unrelated to those
pending in the Sixteenth Circuit in Florida, he must wait
until he is returned to Florida to address the outstanding
warrant for violation of probation. Until that occurs, he
would not be eligible to seek relief under Florida Rule of
Criminal Procedure 3.191(e).
event, irrespective of the lack of an available remedy to
Klein based on his present location, the speedy trial rule
does not apply to probation cases. See Gonzalez v.
State, 447 So.2d 381 (Fla. 3d DCA 1984) (internal
citations omitted) ("The speedy trial rule does not
apply to a proceeding to revoke probation. A probation
revocation hearing is a sentencing function, not a trial.
There is therefore no merit to the claim of speedy trial
violations involving the revocation of probation.").
the trial court correctly denied Klein's motion ...