LINTON EDWARD BEVERLY, A/K/A LINTON EDWARD WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant waived his speedy trial rights through his counsel's continuance, and the pro se motion for discharge was a nullity. However, a technical error in the sentencing scoresheet requires remand.
[1] A defendant waives the speedy trial rule time limitations by requesting a continuance through counsel.
[2] A pro se motion filed by a defendant while represented by court-appointed counsel is a legal nullity.
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Join FLexlaw to unlock all legal intelligenceAppellant was arrested for armed robbery and later moved for discharge, alleging violation of his speedy trial rights. His counsel had previously move…
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SMITH, Chief Judge.
Appellant seeks review of his final judgment and sentence for armed robbery with a deadly weapon, expressly challenging the trial court’s order denying his motion for discharge. We affirm on this issue but remand the case for correction of a technical error in the guidelines scoresheet.
On December 15, 1984, appellant was arrested for armed robbery, and at a hearing approximately 133 days later, his court-appointed counsel moved for a continuance and expressly waived appellant’s rights under the speedy trial rule. On the record, the trial court reset the trial date for August 6,1985. Appellant subsequently filed a pro se motion for discharge, alleging violation of his right to a speedy trial. The trial court denied appellant’s motion just before commencement of the jury trial.
The speedy trial rule time limitations are waived by virtue of a defense continuance. Butterworth in and for Broward Cty. v. Fluellen, 389 So. 2d 968 (Fla.1980). In the present case, appellant, through his attorney, waived his right to a trial within 180 days pursuant to the speedy trial rule. The pro se motion for discharge filed while appellant was being represented by court-appointed counsel is a nullity. See State v. Tait, 387 So. 2d 338 (Fla.1980) (no constitutional right to be represented both by counsel and by one’s self). Appellant’s arguments on appeal are without merit.
After the jury found appellant guilty of armed robbery, the trial court sentenced him to prison for twenty-two years. The guidelines scoresheet indicates a total score of 294 points and a recommended sentencing range of 12-17 years. At sentencing, the trial court orally corrected the score-sheet to reflect a total score of 308 points and a recommended sentencing range of 17-22 years. The primary offense at conviction was a first degree felony punishable by life, rather than a first degree felony as reflected on the scoresheet. On remand, the scoresheet should be amended to reflect the trial court’s oral corrections at sentencing.
AFFIRMED in part and REVERSED in part.
WENTWORTH and JOANOS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Salser v. State, 582 So. 2d 12 (Fla. 5th DCA 1991)…Court of Appeal concluded that a pro se motion for discharge was a nullity and that the defendant’s remedy, if any were appropriate, would be a motion for post-conviction relief based on ineffective assistance of counsel. See also Beverly v. State, 516 So. 2d 30 (Fla. 1st DCA 1987) (citing State v. Tait, 387 So. 2d 338 (Fla.1980)). This court, in a similar situation, struck a pro se petition for writ of error coram nobis filed by an appellant who was represented by counsel on appeal. We pointed out that th…
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Thompson v. State, 615 So. 2d 737 (Fla. 1st DCA 1993)…trial time period for the crime with which he is charged, the defendant waives his speedy trial right as to all charges which emanate [*741] from the same criminal episode.” Stewart v. State, 491 So. 2d 271, 272 (Fla.1986). Accord Beverly v. State, 516 So. 2d 30 (Fla. 1st DCA 1987); Birken v. Scheer, 543 So. 2d 330 (Fla. 4th DCA), review denied, 553 So. 2d 1166 (Fla.1989). The speedy trial requirement is reinstated upon the filing of a motion for discharge. State v. McCrery, 429 So. 2d 739, 741 (Fla. 1st D…
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Salser v. State, 613 So. 2d 471 (Fla. 1993)…o. 2d 349 (Fla. 1st DCA1988), generally consistent with the views I have expressed here, although the dicta in that opinion regarding pro se motions under Rule of Criminal Procedure 3.191 would need to be disapproved. I distinguish Beverly v. State, 516 So. 2d 30 (Fla. 1st DCA1987), because the right to speedy trial was waived there. Finally, I would disapprove the opinion in Johnson v. State, 501 So. 2d 94 (Fla. 1st DCA1987), to the extent it conflicts with my views here.…
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- Honorable Robert A. Butterworth v. Fluellen, 389 So. 2d 968 (Fla. 1980)
- State v. Tait, 387 So. 2d 338 (Fla. 1980)