Tampa Criminal Law News
Tampa Criminal Attorney Discusses CustodyMay 04, 2011
When has a criminal defendant been taken into “custody”? This question can many times mean the difference between a criminal conviction or a dismissal.
What is important to realize is how the definition of custody can change depending on the legal issue a defendant is facing. Being in custody for the purposes of Miranda is not the same as being in custody for purposes of the Fourth Amendment. The issue of custody is also important when the state attorney has possibly violated your client’s right to a speedy trial.
Everyone is somewhat familiar with the legal concept of “speedy trial”. Every defendant has the legal right to force the prosecution to take him or her to trial within a certain time-period. In the state of Florida a criminal defendant has the right to have his/her case taken to trial within 90 days if it is a misdemeanor, and 175 days if they are charged with a felony.
What triggers the running of the speedy trial time period? As you might have already guessed, “custody” is what triggers the speedy trial rule. Florida Rule of criminal procedure 3.191 (d) defines when a criminal defendant is taken into custody for the purposes of the speedy trial rule.
“For the purposes of this rule, a person is taken into custody
when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged, or
when the person is served with a notice to appear in lieu of physical arrest
A formal arrest, complete with fingerprinting and formal charges, is not always necessary to start the running of the speedy trial time. State v. Lail, 687 So.2d 873 (Fla. 2d DCA 1997). However, as many cases point out it is going to take more than an investigatory detention to trigger the running of speedy trial.
However, something more than an investigatory detention is required. Lail; Christian. A person may be “in custody” for purposes of Miranda1 requirements, but not for purposes of the speedy trial rule. Griffin v. State, 474 So.2d 777 (Fla.1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 869, 88 L.Ed.2d 908 (1986); Christian; State v. Miller, 437 So.2d 734 (Fla. 1st DCA 1983); State ex rel. Dean v. Booth, 349 So.2d 806 (Fla. 2d DCA 1977), cert. denied, 358 So.2d 129 (Fla.1978). And, a seizure may trigger fourth amendment protection and yet not be a technical arrest. Griffin.
In Melton v. State, 75 So.2d 291, 294 (Fla.1954), the Florida Supreme Court defined an “arrest” as follows:
It is uniformly held that an arrest, in the technical and restricted sense of the criminal law, is ‘the apprehension or taking into custody of an alleged offender, in order that he may be brought into the proper court to answer for a crime.’... When used in this sense, an arrest involves the following elements: (1) A purpose or intention to effect an arrest under a real or pretended authority; (2) An actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) A communication by the arresting officer to the person whose arrest is sought, or an intention or purpose then and there to effect an arrest; and (4) An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.
The Florida Supreme Court used this definition of arrest for resolving speedy trial issues in Brown v. State, 515 So.2d 211 (Fla.1987) and Griffin.
Courts have determined that where a suspect has been arrested and released (in order to engage in undercover work) speedy trial is deemed to have commenced. Williams v. State, 757 So.2d 597, (Fla. 5th DCA 2007). This particular case is entirely different where the defendant has an agreement with law enforcement that they will not be charged or arrested if they agree to cooperate. The Williams case involved a formal arrest followed by the detectives trying to unarrest the defendant.
