Apolinari v. Ulmer, 86-239
| Decision Date | 05 February 1986 |
| Docket Number | No. 86-239,86-239 |
| Citation | 483 So.2d 75,11 Fla. L. Weekly 382 |
| Parties | 11 Fla. L. Weekly 382 Antonio APOLINARI, Petitioner, v. The Honorable Ray E. ULMER, Jr., Judge of the Circuit Court of the Sixth Judicial Circuit In and For Pasco County, Florida; the Honorable Wayne L. Cobb, Judge of the Circuit Court of the Sixth Judicial Circuit In and For Pasco County, Florida, Respondents. |
| Court | Florida District Court of Appeals |
Robert E. Jagger, Public Defender and William K. Eble, Asst. Public Defender, Dade City, for petitioner.
Jim Smith, Atty. Gen., Tallahassee, and James A. Young, Asst. Atty. Gen., Tampa, for respondents.
Antonio Apolinari petitions this court for a writ of prohibition barring the respondents, as judges of the Sixth Judicial Circuit, from proceeding with trial in violation of Florida Rule of Criminal Procedure 3.191. We grant the petition.
Apolinari is one of three defendants charged with trafficking in cocaine. He was arrested May 30, 1985. Although the state alleges the three acted jointly, separate informations were filed against each defendant, and until nearly five months after Apolinari's arrest, separate trials were scheduled. Apolinari's trial originally was set for October 21, 1985. Shortly before this date the state requested a continuance because a material witness wanted to go on vacation. The continuance was granted over Apolinari's objection, and the trial was rescheduled for November 18, 1985. The state indicated at this time that it also planned to move to consolidate Apolinari's trial with those of the two remaining defendants. However, that motion was not heard until November 14, 1985. The trial court granted the motion for joinder, again over Apolinari's objection. Because the codefendants were not ready for trial November 18, the state was permitted a second continuance, which extended Apolinari's trial date beyond the 180-day speedy trial limit. When 180 days expired Apolinari moved for discharge. Upon denial of that motion, he filed this petition for writ of prohibition.
We initially consider the effect of the first continuance. The trial court's order denying the motion for discharge states that this continuance had the effect of removing the case from the speedy trial rule. Contrary to this assertion, speedy trial was not extended at that time, and it cannot be extended retroactively. Durrance v. Rudd, 398 So.2d 1012 (Fla. 1st DCA 1981). In fact, the trial court expressed some skepticism that the witness' vacation plans would constitute "exceptional circumstances" as defined by rule 3.191(f). The November 18 trial date appears to have been chosen deliberately to fall within the 180-day time period and thus to preserve Apolinari's speedy trial rights.
The trial court also held that "joinder was granted to the State not for reasons of mere convenience ... but for reasons required by substantial justice." We must disagree. At the hearing on the motion for joinder, the state's principal argument was that "the witnesses as to each defendant are the same" and "the expense of doing three trials can be alleviated by doing one trial." Such considerations do not override a defendant's right to a speedy trial. Miner v. Westlake, 478 So.2d 1066 (Fla.1985). Further, we hold that Apolinari's objection to the joinder sufficiently preserved his speedy trial rights. San Martin v. Menendez, 467 So.2d 1035 (Fla. 2d DCA 1985), cited by the state, is distinguishable because there all defendants had been jointly charged ab initio. Thus, when speedy trial was extended to accomodate one of the defendants, the others were obliged to seek a severance or waive any objection to the extension. Unlike San Martin, no motion for severance was necessary here. Machado v. State, 431 So.2d 337 (Fla. 2d DCA 1983).
Finally, the state argues that Apolinari waived his right to speedy trial by virtue of his failure to schedule a hearing on the motion for discharge within five days. The motion was filed December 19, 1985, but not heard until January 15, 1986. Florida Rule of Criminal Procedure 3.191(i)(4)...
To continue reading
Request your trial
-
Baxter v. Downey, 90-02958
...burden to schedule a timely hearing on the motion, insofar as the "window of recapture" rule operates to their benefit. Apolinari v. Ulmer, 483 So.2d 75 (Fla.2d DCA), rev. denied, 492 So.2d 1335 (Fla.1986). Had the rule been followed, and the same ruling made, our decision to deny relief wo......
-
Miketa v. Cardonne, 89-1148
...rights were denied below, and they are now entitled to a discharge. Watts v. State, 516 So.2d 346 (Fla. 3d DCA 1987); Apolinari v. Ulmer, 483 So.2d 75 (Fla. 2d DCA), rev. denied, 492 So.2d 1335 (Fla.1986); Davis v. State, 474 So.2d 336 (Fla. 3d DCA 1985); Black v. State, 468 So.2d 457 (Fla.......
-
Lasker v. Parker, s. 87-1167
...benefit, the state now has the burden of arranging for a prompt hearing when a motion for discharge has been filed. Apolinari v. Ulmer, 483 So.2d 75 (Fla. 2d DCA), rev. denied, 492 So.2d 1335 (Fla.1986). An obvious corollary to the state's burden is its ability, if it chooses, to convey to ......
-
Ricci v. Parker
...committee note to the new rule. The Florida Bar Re: Amendment to Rules--Criminal Procedure, 462 So.2d 386 (Fla.1984). In Apolinari v. Ulmer, 483 So.2d 75 (Fla. 2d DCA), petition for review denied, 492 So.2d 1335 (Fla.1986), this court gave that note persuasive effect when we concluded that ......