       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.

     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.

1
  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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