THE STATE OF FLORIDA, APPELLANT,
v.
JEROME BELIEN, APPELLEE
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The State appeals a discharge order based on violation of Florida's speedy trial rule. The court reverses, holding that the defendant waived speedy trial protections by requesting a continuance before the 180-day period expired, and that the defendant's counsel deliberately sought dismissal through delay rather than preparing for trial.
A defendant waives speedy trial protections by moving for and obtaining a continuance before the 180-day period expires. The court reversed the discharge because the state's delay did not prevent the defendant's counsel from preparing for trial, and the assistant public defender deliberately sought dismissal through delay rather than exercising speedy trial rights in good faith.
[1] A defendant waives the benefit of the speedy trial rule by moving for and being granted a continuance before the expiration of the statutory period.
[2] A defendant's motion for a continuance constitutes an effective waiver of the speedy trial rule when it is an intentional relinquishment of a known right.
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Join FLexlaw to unlock all legal intelligence“before the expiration of the 180-day period after his arrest, the defendant moved for and was granted a continuance, thus waiving the benefit of the rule”
Establishes the court's core holding that a continuance request before the deadline operates as a waiver of speedy trial protections
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Join FLexlaw to unlock all legal intelligenceThe defendant was arrested and moved for a continuance before the 180-day speedy trial period expired. The state filed an information and did not arra…
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SCHWARTZ, Judge.
The state appeals from an order discharging the defendant under the speedy trial rule. Fla.R.Crim.P. 3.191.
We reverse because, before the expiration of the 180-day period after his arrest, the defendant moved for and was granted a continuance, thus waiving the benefit of the rule. State ex rel. Butler v. Cullen, 253 So. 2d 861 (Fla.1971); Homer v. State, 358 So. 2d 1176 (Fla.3d DCA 1978), cert. denied, 364 So. 2d 886 (Fla.1978); Brown v. State, 328 So. 2d 497 (Fla.3d DCA 1976), cert. denied, 339 So. 2d 1167 (Fla.1976).
The defendant claims that this principle should not apply on the grounds that the state unnecessarily delayed filing an information and did not arraign him until only 16 days before the running of the speedy trial time. This contention is totally without merit under the circumstances disclosed by the record. Unlike such cases as Mulryan v. Judge, Division “C” Circuit Court of Okaloosa County, 350 So. 2d 784 (Fla.1st DCA 1977); and State ex rel. Wright v. Yawn, 320 So. 2d 880 (Fla.1st DCA 1975), cert. denied, 334 So. 2d 609 (Fla.1976), upon which Belien relies, the state’s delay here did not result in any inability of counsel properly to defend him on the trial date set by the court, which was within the 180-day period. See Oatman v. State, 289 So. 2d 431 (Fla.3d DCA 1974).1 To the contrary, it affirmatively appears that the assistant public defender, as a matter of tactics, deliberately chose not to go to a speedy trial specifically in order to attempt to secure a dismissal under the speedy trial rule.
Thus, his motion for continuance squarely fit the classic definition of an effective waiver as “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). In other words, “gotcha!” maneuvers will not be permitted to succeed in criminal, any more than in civil litigation. Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337, 1339 (Fla.3d DCA 1979); McPhee v. State, 254 So. 2d 406 (Fla.1st DCA 1971).
The order of discharge is therefore reversed and the cause remanded for further proceedings consistent herewith.
Reversed and remanded.
. There is and can be no contention that, absent the speedy trial rule, the defendant would be entitled to a dismissal simply because of the delay itself. See Eans v. State, 366 So. 2d 540, 543 (Fla.3d DCA 1979); State v. Griffin, 347 So. 2d 692, 695 (Fla.1st DCA 1977), cert. dismissed, 358 So. 2d 134 (Fla.1978).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (12 total)
- Johnson v. Zerbst, 304 U.S. 458 (U.S. 1938)
- State of Fla. ex rel. Isaac Don Butler & Gerald Nickles v. Honorable Ralph O. Cullen, 253 So. 2d 861 (Fla. 1971)
- Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979)
- McPHEE v. State, 254 So. 2d 406 (Fla. 1st DCA 1971)
- State of Fla. ex rel. Robert Clark v. Theron A. Yawn, Jr., 320 So. 2d 880 (Fla. 1st DCA 1975)
- State v. Griffin, 347 So. 2d 692 (Fla. 1st DCA 1977)
- J. B. v. State, 328 So. 2d 497 (Fla. 3d DCA 1976)
- Mulryan v. Judge, Div. "C" Cir. Court OF Okaloosa Cnty., Fla., 350 So. 2d 784 (Fla. 1st DCA 1977)
- Hernandez v. Metro. Dade Cnty., 358 So. 2d 1176 (Fla. 3d DCA 1978)
- Homer v. State, 358 So. 2d 1176 (Fla. 3d DCA 1978)