
    STATE of Florida, Appellant, v. Mark FURST, Appellee.
    No. 92-2503.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1993.
    Rehearing, Clarification and Certification Denied Sept. 9, 1993.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and James J. Carney, Asst. Atty. Gen., West Palm Beach, for appellant.
    H. Scott Hecker, Law Offices of H. Scott Hecker, P.A., Fort Lauderdale, for appel-lee.
   PER CURIAM.

We affirm Appellee’s speedy trial discharge because the trial court had the discretion to conclude on the record that the state had actual notice of, and intentionally ignored, Appellee’s prematurely filed demand for reciprocal discovery. The demand was filed and served prior to the state’s issuance of the formal information.

There is no indication or finding of intentional misconduct by the defense and the record supports Appellee’s allegations of prejudice if forced to trial prior to the expiration of the speedy trial period. The state’s only explanation for ignoring the actual notice was that the prosecutor wanted to see what transpired in Appellee’s transfer to a “drug court” division of the court before complying with the discovery request.

We need not address whether a prematurely filed discovery demand would be enforceable in the absence of actual notice.

ANSTEAD and STONE, JJ., concur.

OWEN, WILLIAM C., Jr., Senior Judge, dissents with opinion.

OWEN, WILLIAM C., Jr., Senior Judge,

dissenting.

While I grant that the wording of Florida Rule of Criminal Procedure 3.220(b)(1) is not as clear as it might be, nonetheless, I think it requires that the defendant’s election to participate in reciprocal discovery be served after the filing of the indictment or information. Thus, the demand for discovery served prior to the information being filed was a nullity. I conclude, therefore, that the state, despite actual notice of the demand, was not obligation-to respond, and absent an obligation on the part of the state to respond, the court erred in finding there was a discovery violation entitling defendant to be discharged.  