Speedy Trial | Written Waiver | Rule 3.191

Your right to a speedy trial is guaranteed in the Sixth Amendment of the United States Constitution.  Florida provides additional rights in Florida Rule of Criminal Procedure 3.191.  Both the constitutional right to a speedy trial and Florida Rule of Criminal Procedure 3.191 apply.

Speedy Trial?  How Long is too Long?

The constitutional right to a speedy trial does not define a certain length of time.  Florida Rule of Criminal Procedure 3.191 provides that a defendant must be brought to trial within 90 days of arrest if charged with a misdemeanor.  A defendant must be brought to trial within 175 days of arrest if charged with a felony. The defendant can move to have the case dismissed if the state fails to bring the defendant to trial within the 90 or 175 days.

Waiving Your Right to a Speedy Trial

The 90 and 175 day time limits do not apply if the defendant waives the right to a speedy trial.  There are many good reasons that a defendant would waive the right to a speedy trial.  Why a defendant would want to do so is another topic. However, typically it involves needing additional time to prepare or additional time to negotiate a resolution.

How to Waive your Right to a Speedy Trial

Most of the time, at least in my cases, an attorney has filed a wavier of appearance and the defendant will not be there for the calendar call. In that case, the attorney simply tells the judge that the defendant waives the right to a speedy trial.  That works most of the time.  The judge is essentially taking the attorney at his word that he has the client’s authorization to do so. The judge may place the defendant under oath and ask the defendant he or she understands the right being waived.  If the defendant is not at the calendar call, due to a waiver of appearance, some judges like for the file to contain a written waiver signed by the defendant.  Each judge is different.

Below is a written waiver of speedy trial in the event the judge asks you to supplement the file with a signed waiver.  There is no standardized form.  This is one that I created and have used on numerous occasions.  The is no rule that a written waiver needs to be notarized, but it is my personal preference to have it notarized.

The form is in fillable PDF format.  Please feel free to use, distribute, edit, copy, link to, etc.

Submitted by DUI Attorney Michael Dye.

Download ( Waiver-of-Speedy-Trial.pdf, PDF, 25KB)

Violation of Due Process | Exclusionary Rule

Additional State Protections

When drafting a motion to suppress do not forget that states are typically permitted to enact laws that grant a defendant more protection than is afforded in the United States Constitution. In Michigan Department of State Police vs. Sitz, the United States Supreme Court granted certiorari jurisdiction and ruled that sobriety checkpoints were valid under the Fourth Amendment of the United States Constitution. On remand to the Michigan Supreme Court, the Michigan Supreme Court ruled that Michigan’s Constitution provided additional protections and that sobriety checkpoints were unconstitutional under the state constitution. A similar situation occurred in Florida after the United States Supreme Court ruled on the Moran vs. Burbine case. So even if there is a federal case on point, make sure that your state does not provide additional protections.

Moran vs. Burbaine

In 1986, the United States Supreme Court ruled that Mr. Burbaine knowingly and voluntarily waived his Fifth Amendment right to have a lawyer present during questioning. The facts of the case were as follows:

Mr. Burbaine was taken into custody by the police concerning a murder. Mr. Burbine’s sister contacted an attorney to represent her brother. The attorney contacted the police department who stated that Mr. Burbine would not be questioned until the following day. It is no surprise to find out that the police began questioning Mr. Burbaine regarding the murder less than 1 hour after they informed the attorney that the questioning would not take place until the next day. Mr. Burbaine was never informed by the police that his sister had retained an attorney for him and Mr. Burbaine waived his 5th Amendment rights. During the interrogation, Mr. Burbaine signed 3 separate statements confessing to the murder. His attorney’s moved to suppress the statements as illegally obtained in violation of Mr. Burbaine’s Fifth Amendment Rights guaranteed under the United State’s Constitution.

United States Supreme Court Holding: Neither the police conduct nor Mr. Burbaine’s ignorance of the fact that an attorney was hired to represent him and had been attempting to contact him rendered the statement’s given in violation of the Fifth Amendment. Mr. Burbaine’s Sixth Amendment right to counsel had not yet attached. Additionally, the court did not find a 14th Amendment Violation, although leaving room for a potential violation under more egregious facts.

The United States Supreme Court specifically stated that the various states may adopt different standards which have the effect of providing additional protections under state law.

Haliburton vs. State

The facts in Haliburton vs. State are substantially similar to the facts in Moran vs. Burbine. In Haliburton, the Florida Supreme Court held that Article I, Section 9 of the Florida Constitution required that the evidence in Haliburton be suppressed. The Florida Supreme Court focused on the dissenting opinion in the Burbine matter written by Justice Stevens. The main point in Justice Stevens dissent and the Haliburton opinion is “Police interference in the attorney-client relationship is the type of governmental misconduct on a matter of central importance to the administration of justice that the Due Process Clause prohibits………Just as the government cannot conceal from a suspect material and exculpatory evidence, so too the government cannot conceal from a suspect the material fact of his attorney’s communication.”

Public Link Provided By: Fastcase, Haliburton vs. State, 514 So.2d 1088(Fla. 1987)

Haliburton in a DUI Context

Appellate ruling coming soon.

Avoiding a DUI Checkpoint

Motion to Suppress for Violation of 4th Amendment | No Probable Cause for Stop
Jurisdiction: District Court, Wake County, North Carolina
Location of Checkpoint: Raleigh, NC
Issues: Did the act of pulling into a driveway with a checkpoint in view constitute reasonable suspicion that the driver was attempting to avoid a checkpoint?
Major Case(s):
State: 1) See State v. Haislip, 651 SE 2d 243, 246-47 (NC Ct. App. 2007)
2) Whren v. United States, 517, U.S. 806, 809-10(1996).
Result: Motion to Suppress Denied. The issues raised at the evidentiary hearing were a matter of first impression in North Carolina.  The Court took the matter under advisement and researched the matter further.  The court located two cases that were on point.  If memory serves correct, one was from Hawaii and one was from a state in the South.  The Hawaii court ruled for the State and the other court ruled for the defense.  The Judge found the reasoning from the Hawaii case to be more persuasive and denied the motion.  Client did not appeal. Two appellate courts have ruled in two different ways. This motion is worth another shot.

Motion to Suppress:

Download ( Motion-to-Suppress-Avoiding-Checkpoint.pdf, PDF, 47KB)