       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 3, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-2123
                        Lower Tribunal No. 96-467-A-K
                             ________________


                                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.

     PER CURIAM.
      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 alleges that there is a



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charge against him for a violation of probation in a 1996 case for the offense of

grand theft of a motor vehicle. Klein also asks 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 provides in part:

            (e) Prisoners outside Jurisdiction. A person who is
            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.

1The 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 is not entitled to the relief he seeks under Florida Rule of

Criminal Procedure 3.191(e). Accordingly, the trial court correctly denied his

motion demanding a speedy trial.

      Affirmed.




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