       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          FREDERICK SMART,
                              Petitioner,

                                     v.

                          STATE OF FLORIDA,
                             Respondent.

                              No. 4D15-3969

                           [November 18, 2015]

  Petition for writ of prohibition to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Karen Miller, Judge; L.T. Case No.
2013CF012696.

  Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant
Public Defender, West Palm Beach, for petitioner.

   No appearance for respondent.

PER CURIAM.

    Frederick Smart petitions for a writ of prohibition following the trial
court’s denial of his motion for discharge, which claimed a violation of the
speedy trial rule. “A writ of prohibition is an appropriate remedy ‘where
an accused has been denied his right to a speedy trial and his motion for
discharge has been denied.’” Dempsey v. State, 82 So. 3d 928, 929 (Fla.
4th DCA 2011) (quoting Sherrod v. Franza, 427 So. 2d 161, 163 (Fla.
1983)). We deny the petition on the merits and write to clarify when a trial
commences within the meaning of Florida Rule of Criminal Procedure
3.191(c).

    Petitioner is charged with sexual battery, aggravated battery with a
deadly weapon, aggravated assault with a deadly weapon, and false
imprisonment. On June 17, 2015, he filed a demand for speedy trial
triggering a fifty-day time period for commencing trial. Fla. R. Crim. P.
3.191(b). This fifty-day time period would have expired on August 6, 2015.

    Petitioner’s case was called for trial on July 28, 2015. The prospective
jurors were sworn downstairs in the jury assembly room before being
called to the courtroom for this case. The trial court began questioning
the seventy prospective jurors collectively and individually. After the court
had questioned numerous prospective jurors, a juror made an offensive
remark in response to a question from the judge. The juror stated that a
criminal defendant should not have a trial and should be hung outside.
Although the judge suggested the remark was an attempt to get out of jury
duty that would not work, the defense moved to strike the entire panel of
prospective jurors. Over the state’s objection, the court agreed with the
defense and struck all seventy prospective jurors. The court determined
that there were not enough remaining prospective jurors to select a panel
and reset the trial within the ninety-day time period that applies following
a mistrial rather than within the fifty-day period expiring on August 6,
2015. Fla. R. Crim. P. 3.191(m).

     The court determined that the trial had commenced within the speedy
trial time because the prospective jurors, who had been sworn downstairs,
were brought to the courtroom for voir dire and questioned as to this
specific case. The jury panel had been stricken on the defense’s motion.
The defense argued that the trial did not commence, because the
prospective jurors were not sworn in the courtroom for this particular case.

    After the fifty-day speedy-trial-upon-demand time had expired, the
defense filed notices of expiration and a motion for discharge. The trial
court denied discharge, and this petition followed.

    The rule at issue provides:

      A person shall be considered to have been brought to trial if
      the trial commences within the time herein provided. The trial
      is considered to have commenced when the trial jury panel for
      that specific trial is sworn for voir dire examination or, on
      waiver of a jury trial, when the trial proceedings begin before
      the judge.

Fla. R. Crim. P. 3.191(c) (emphasis added). Petitioner relies on Moore v.
State, 368 So. 2d 1291, 1292 (Fla. 1979), and Stuart v. State, 360 So. 2d
406, 409 (Fla. 1978), and argues that the emphasized language above was
not satisfied because the prospective jurors were not sworn for voir dire in
the courtroom for this specific trial.

   Moore and Stuart held that the swearing of a large number of
prospective jurors at the beginning of the week was not alone sufficient to
commence trial. The Florida Supreme Court in Stuart recognized that trial
commences when voir dire examination begins for that specific case. “The

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fact that the prospective jurors were seated for voir dire for a particular
trial within the period of the rule distinguishes Maines [sic] from the case
at bar.” Stuart, 360 So. 2d at 409 (citing State ex rel. Maines v. Baker, 254
So. 2d 207, 208 (Fla. 1971)). In Maines, as in this case, the prospective
jurors were sworn in by the clerk but were not sworn in again after being
brought to the courtroom. 254 So. 2d at 208. In that situation, the
supreme court found that the trial commenced because voir dire began for
that specific case. Id. The decision in Maines has not been overruled.

     In 1980, following the decisions in Stuart and Moore, the Florida
Supreme Court added the following emphasized language to the speedy
trial rule, which is practically identical to that in the current rule: “The
trial is deemed to have commenced when the trial jury panel (for that
specific trial) is sworn for voir dire examination.” The Fla. Bar In re Rules
of Criminal Procedure, 389 So. 2d 610, 612 (Fla. 1980) (emphasis added).
The committee note reflects that this amendment was a “[m]inor change
in language to reflect case law.” Id. at 615.

    Petitioner argues that the language in the rule is not satisfied unless
the court again swears the jury panel for voir dire once they are brought
to the courtroom. We disagree. The rule does not require that the jury be
sworn for voir dire again in the courtroom.1 The Florida Supreme Court’s
decisions in Stuart and Maines recognize that trial has commenced within
the meaning of the rule when voir dire of a sworn panel of prospective
jurors begins for that specific trial.

    In this case, the trial court correctly determined that trial commenced
when the prospective jurors, who had already been sworn, were seated for
voir dire and questioning began for this particular case. Petitioner has not
established an entitlement to discharge. The petition for writ of prohibition
is denied.

    Petition denied.

WARNER, STEVENSON and KLINGENSMITH, JJ., concur.

                              *         *         *

    Not final until disposition of timely filed motion for rehearing.

1  The practice in the Fifteenth Judicial Circuit, as in many courts across the
state, is to swear the prospective jurors in the jury room before they are brought
to the courtroom for voir dire as to a particular case.


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