Opinion
No. 4D04-802.
January 25, 2006.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Howard M. Zeidwig, Judge, L.T. Case No. 03-10674 DL.
Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
Defendant complains on appeal that he was denied his speedy trial rights under Rule 3.191(h) when the State failed to bring him to trial within the 10 day period following a hearing on his motion for discharge. We affirm the conviction.
The precise issue he raises was answered in State v. Salzero, 714 So.2d 445 (Fla. 1998), where the identical argument was made. There, as here, the defendant filed a motion for discharge, arguing that the time for trial set by rule had elapsed. 714 So.2d at 445; See Fla.R.Crim.P. 3.191(h). The trial court held a hearing two days after the motion was filed, and set a trial date within 10 days of the hearing. Id. Owing to a discovery failure by the state, the court moved the trial date forward by 3 days, which is more than 10 days after the hearing but within 15 days from defendant's motion. Id. The supreme court held that "a violation of the five and ten-day periods provided in rule 3.191(p)(3) is harmless if a defendant is actually brought to trial within fifteen days of filing his notice of expiration." 714 So.2d at 447. The court noted that the express intent of the rule was to afford the State Attorney 15 days in which to bring the defendant to trial from the date of the filing of the motion for discharge. Id.
In this case, the trial was held within the 15 day period following defendant's motion for discharge. Any error in failing to try defendant within 10 days after the hearing on his motion for discharge was harmless. Accordingly the judgment is affirmed.
Affirmed.
KLEIN and GROSS, JJ., concur.
Not final until disposition of timely filed motion for rehearing.