Kelly v. State

16 Citing cases

  1. Ruester v. Turner

    250 So. 2d 264 (Fla. 1971)   Cited 11 times

    107 So. at 269. A relatively similar situation obtained in Kelly v. State, ex rel. Morgan, 54 So.2d 431 (Fla. 1951), and citing Gayle, we again held that a mistrial was a trial. Although both Gayle and Kelly involved early statutory forms of Fla. Stat. § 915.01(1), F.S.A, and although both were concerned with mistrials resulting from a deadlocked jury, we perceive no compelling reason why the same logic should not apply to mistrials generally under Fla. Stat. § 915.01(2) F.S.A. This conclusion is reinforced by the additional fact that the latter statute requires that the defendant be "brought to trial" within the period specified; see, State v. Fromkin, supra. By definition, a mistrial cannot occur until one has first been brought to trial.

  2. Cacciatore v. State

    226 So. 2d 137 (Fla. Dist. Ct. App. 1969)   Cited 10 times
    In Cacciatore, the Third District held that the trial court did not abuse its discretion in excluding the testimony of three of five witnesses the defendant attempted to call. It appears that the basis for this decision was the fact that the defendant, after invoking Rule 3.220, had failed to comply with its requirements.

    The Supreme Court of Florida has made the following comments concerning the application of this statute in Loy v. Grayson, Fla. 1957, 99 So.2d 555, 556. "In Kelly v. State ex rel. Morgan, Fla. 1951, 54 So.2d 431, we held that the constitutional right of any defendant to a speedy trial did not come into effect until a request to be tried had been made by him: `Silence on the part of the accused will not activate the statute.

  3. State v. Ochoa

    406 P.3d 505 (N.M. 2017)   Cited 62 times
    Holding that delay caused by agency furlough was not attributable to the defendant but was also not attributable to the government because there had been no systemic breakdown in the public defender system

    The "clock" approach does not adequately protect incarcerated defendants in the event of successive mistrials. Ruester v. Turner, 250 So.2d 264, 267 (Fla. 1971) ("A construction allowing for a continuing series of new demand periods reinstated in the event of each mistrial would ... do violence to our organic guarantee of speedy trial...."), overruling Kelly v. State ex rel. Morgan, 54 So.2d 431, 432 (Fla. 1951). It is also inconsistent with our obligation to consider the unique circumstances underlying each speedy trial claim, including the particularized prejudice facing each defendant. See Barker, 407 U.S. at 522, 92 S.Ct. 2182 ("[A]ny inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case."); see also Garza, 2009-NMSC-038, ¶ 13, 212 P.3d 387 ("Violation of the speedy trial right is only determined through a review of the circumstances of a case, which may not be divorced from a consideration of ... the harm to the defendant.... ").

  4. Goodman v. State ex Rel. Buono

    243 So. 2d 594 (Fla. 1971)   Cited 1 times

    PER CURIAM. By petition for a writ of certiorari, we have for review a decision of the District Court of Appeal, Third District, State ex rel. Buono v. Goodman, 233 So.2d 185 (3rd D.C.A. Fla. 1970), which allegedly conflicts with the decision rendered by this Court in Kelly v. State, 54 So.2d 431 (Fla. 1951), and by the District Court of Appeal, Fourth District, in Gossett v. Hanlon, 195 So.2d 865 (4th D.C.A. Fla. 1967). We have heard arguments on both jurisdiction and merits.

  5. State, Leon v. Baker

    238 So. 2d 281 (Fla. 1970)   Cited 20 times

    The District Court took the view that since no objection by petitioner to this continuance appeared in the record, petitioner must have acquiesced to it. The Court also felt that a crowded docket constituted "good and sufficient reason" for tolling the effect of the speedy trial statute under our decision in Kelly v. State ex rel. Morgan, 54 So.2d 431 (Fla. 1951). It should also be noted that in footnote 4, 229 So.2d at 596, the Court commented that, "Although the statute does not fix the time for filing demand in a term, it appears obvious that demand must be filed sufficiently early in the term to afford the State adequate time to hold trial in that term." We agree with the contention that doctrines of waiver and acquiescence are fully applicable to speedy trial cases.

  6. Loy v. Grayson

    99 So. 2d 555 (Fla. 1957)   Cited 13 times

    "When a person has been arrested and released on bond, and thereafter for three successive terms of court, files a written demand for trial (serving a copy on the prosecuting attorney) and he is not brought to trial on or before the third full term after the date he is first committed, he shall be forever discharged from the crime; provided, however, the attendance of the witnesses is not prevented by himself, and he has filed no pleadings seeking a continuance." In Kelly v. State ex rel. Morgan, Fla. 1951, 54 So.2d 431, we held that the constitutional right of any defendant to a speedy trial did not come into effect until a request to be tried had been made by him: "Silence on the part of the accused will not activate the statute.

  7. State v. Williams

    73 So. 2d 295 (Fla. 1954)   Cited 4 times

    This is all the more true when the statute vests in the trial court some discretion as to granting or denying continuance and there is no showing that his discretion was abused. There is showing that he did not abuse it. Kelly v. State ex rel. Morgan, Fla., 54 So.2d 431. Appellee made no attempt to comply with Section 915.01(1) and did not contest the motions of the State for continuance. It is unnecessary to discuss other grounds. Reversed.

  8. State v. Wolfe

    249 So. 2d 736 (Fla. Dist. Ct. App. 1971)   Cited 2 times

    It was incumbent upon the prosecuting attorneys to secure [for the benefit of society as a whole] an impartial judge and, as long as they were pursuing such a cause in good faith, we hold that their action may and does toll the effect of the statute in the instant case. Compare Kelly v. State ex rel. Morgan, Fla. 1951, 54 So.2d 431; State v. Cook, Fla.App. 1967, 201 So.2d 769, cert. denied Fla., 211 So.2d 211; State v. Carroll, Fla.App. 1970, 240 So.2d 205; Woodward v. Edwards, Fla.App. 1970, 244 So.2d 438. To hold otherwise would put prosecuting officials of a criminal court on the horns of a dilemma, when they had good reason to believe that a particular trial judge should not consider a certain criminal cause.

  9. Smith v. State

    239 So. 2d 284 (Fla. Dist. Ct. App. 1970)   Cited 11 times
    In Smith v. State, 239 So.2d 284 (Fla. 2d DCA 1970), the district court reversed a conviction for rape. Although there was some evidence to support each element of the offense, the court concluded that the record as a whole disclosed such a possibility of error that a new trial was required.

    This 2nd District Court, in Wilson v. State, Fla.App. 1967, 194 So.2d 33, construing § 915.01, said that "the defendant must file a request for a trial before this statute takes effect. Silence on the part of the accused will not activate this statute", citing the Supreme Court cases of Loy v. Grayson, Fla. 1957, 99 So.2d 555 and Kelly v. State ex rel. Morgan, Fla. 1951, 54 So.2d 431. And in Dickey v. Circuit Court, Gadsden County, Fla. 1967, 200 So.2d 521, the Supreme Court said that § 915.01 "places on the accused the primary burden for bringing about a speedy trial."

  10. Leonard v. McIntosh

    237 So. 2d 809 (Fla. Dist. Ct. App. 1970)   Cited 1 times

    We recognize at least three instances. The supreme court has stated in Kelly v. State ex rel. Morgan, Fla. 1951, 54 So.2d 431, that "If there has been a mistrial or a continuance for good cause, or if for other good and sufficient reasons a trial cannot be provided, the statute may be tolled.