Opinion
No. 79-126.
November 12, 1980. Rehearing Denied December 17, 1980.
Appeal from Circuit Court, Broward County; Joseph E. Price, Jr., Judge.
Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
Stephen M. Goodman, Margate, for appellee.
The appellee was discharged after the state failed to bring him to trial within 90 days of a state requested continuance. However, the record reflects that the appellee had previously secured a continuance and thereby waived his right to a speedy trial under the speedy trial rule. Although we have previously held that the state is required to bring a defendant to trial within 90 days of a continuance granted at the state's request following an earlier defense continuance, those decisions have now been overruled by the Florida Supreme Court. See Butterworth v. Fluellen, 389 So.2d 968, 80 F.L.W. 378 (Fla. 1980). Since the discharge herein was predicated upon the rule rejected in Butterworth, supra, we must reverse. However, our reversal is without prejudice to the appellee to seek a discharge predicated upon any alleged violation of his constitutional right to a speedy trial. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla. 1971). We express no view on this issue.
Accordingly, this cause is hereby reversed and remanded with directions for further proceedings consistent herewith.
DOWNEY, ANSTEAD and HURLEY, JJ., concur.