Klein v. State

Third District Court of Appeal
State of Florida
Opinion filed January 3, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-2123
Lower Tribunal No. 96-467-A-K
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Brian S. Klein,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Monroe County, Timothy J. Koenig,
Judge.
Brian S. Klein, in proper person.
Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellee.
Before LOGUE, LUCK and LINDSEY, JJ.
LINDSEY, J.
Brian 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.
Klein 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
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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.1 This appeals follows.
Florida 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.
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The trial court had previously sent a letter to Klein informing him that there was
no record of the outstanding warrant being dismissed and advising that upon
completion of his sentence in Illinois, arrangements would be made for the
outstanding warrant to be served and for his return to the Sixteenth Circuit to address
the violation of probation charge(s).
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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).
In any 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.”).
Accordingly, the trial court correctly denied Klein’s motion demanding a
speedy trial.
Petition denied.
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