Banks v. State, 93-0983

• Decision Date: 19 February 1997
• Docket Number: No. 93-0983,93-0983
• Citation: 691 So.2d 490
• Parties: 22 Fla. L. Weekly D467 Albert BANKS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 490

691 So.2d 490

22 Fla. L. Weekly D467

Albert BANKS, Appellant, v. STATE of Florida, Appellee.

No. 93-0983.

District Court of Appeal of Florida,

Fourth District.

Feb. 19, 1997.

Rehearing and Certification

Denied April 23, 1997.

Bert Winkler, West Palm Beach, for appellant.

Robert Butterworth, Attorney General, Tallahassee, Joan Fowler and Don Rogers, Assistant Attorney Generals, West Palm Beach, for appellee.

EN BANC

STONE, Judge.

We grant the state's motion for rehearing en banc, withdraw our opinion of September 13, 1995, and substitute the following opinion. The sole issue we address is whether the trial court erred in denying a motion for discharge under the "speedy trial" rule. The judgment and sentence are affirmed.

Appellant was charged on April 24, 1992 and a not guilty plea was entered on May 4, 1992. On that date, the defense also filed a demand for reciprocal discovery pursuant to rule 3.220, Florida Rules of Criminal Procedure. ¹ The trial was set, without objection, for May 26th. At calendar call on May 22nd, defense counsel indicated that he was not ready for trial and requested a continuance because he had not received the full discovery from the state until May 20th. ²

In response to the defense attorney's assertion that the continuance should not be "charged to" the defendant, the court advised counsel that he could not "have it both ways," and that the court was prepared to proceed to trial the following week unless the defense maintained its request for a continuance knowing that it would not be charged to the state. The defendant's attorney then advised the court that he was not ready for trial and could not be ready. Counsel indicated that he would need a continuance of at least 60 days, which the court granted. We note that the record reflects that the public defender had initially been appointed as counsel, and that private counsel was apparently retained after the arraignment. The trial was subsequently continued again and trial commenced in November, 207 days after the arrest.

Appellant did not, and does not, assert that there was a discovery violation. The record does not reflect any claim of misconduct or intentional delay by the state in furnishing discovery. Nor is there even a contention that the state was seeking some tactical advantage by the time taken in obtaining and furnishing the discovery material. Defense counsel's argument to the trial court was that counsel was not prepared and did not have sufficient time to prepare for trial.

Florida Rule of Criminal Procedure 3.191(j) states that where a trial is continued at a defendant's request, the resulting delay is "attributable to the accused." As a general rule, a defense request for continuance, absent state misconduct, inexcusable delay in providing discovery, or other violation of defense discovery rights, waives the 175 day "speedy trial" time and the defendant's right to discharge pursuant to criminal procedure rule 3.191(a). State v. Frazee, 617 So.2d 350, 351 (Fla. 4th DCA 1993); J.B. v. Korda, 436 So.2d 1109 (Fla. 4th DCA 1983); Colby v McNeill, 595 So.2d 115 (Fla. 3d DCA), rev. denied, 604 So.2d 487 (Fla.1992); Fonte v. State, 515 So.2d 1036 (Fla. 3d DCA 1987), rev. denied, 525 So.2d 878 (Fla.1988); Blackstock v. Newman, 461 So.2d 1021, 1022 (Fla. 3rd DCA), rev. denied, 467 So.2d 999 (Fla.1985); State v. Fraser, 426 So.2d 46 (Fla. 5th DCA 1982), rev. denied, 436 So.2d 98 (Fla.1983); State v. Brown, 412 So.2d 448 (Fla. 5th DCA 1982). See also Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974); State v. Oppert, 380 So.2d 1301 (Fla. 4th DCA), rev. denied, 392 So.2d 1377 (Fla.1980); State v. Duda, 368 So.2d 918, 919-920 (Fla. 4th DCA 1979); State v. Kurtz, 354 So.2d 890, 891-892 (Fla. 4th DCA), cert. denied, 360 So.2d 1249 (Fla.1978); State v. Abrams, 350 So.2d 1104, 1105 (Fla. 4th DCA 1977); State ex rel. Gadson v. Tyson, 334 So.2d 56, 58 (Fla. 4th DCA 1976).

Finding no fault with the state, Appellant's argument is that he should not lose his right to seek a speedy trial discharge simply because the court scheduled his first trial date for only three weeks after arraignment. However, although a defendant is assured a fair opportunity to prepare for trial, there is no rule precluding a court's affording an early trial date opportunity.

The speedy trial right at issue here is not one of constitutional dimension and clearly may be waived. Fonte; Fraser. Nor is the defendant's lack of fault, or even possible defense prejudice, a determining factor in deciding whether speedy trial was waived by the defense being unavailable for trial. See State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); Fonte; Fraser; Blackstock. In any event, Appellant is not prejudiced, as the defense at all times had available the 50 day speedy trial by demand remedy provided under rule 3.191, as well as speedy trial principles available under the state and U.S. constitutions.

In Cullen, the court rejected the argument that speedy trial rights cannot be waived by seeking a continuance where a defendant is prejudiced due to insufficient time to prepare within the time allotted prior to the scheduled trial date. The court, after recognizing that the request is a waiver, noted that, at that point (upon granting the continuance), it becomes "incumbent upon the trial court to set a trial date far enough in advance to allow adequate time for preparation." Id. at 863. The court also recognized that the defendant is not unduly prejudiced by this holding, as there remains the right to demand speedy trial under the rule and the defendant retains constitutional rights to a speedy trial.

The record does not reflect whether the state could have gathered, reviewed, prepared, and furnished full discovery in less than the time it utilized. Nor did defense counsel claim that the state could have done so. However, we note that even if the state could have done so, such would be irrelevant, as discovery was timely furnished and there was no misconduct or even a defense request to shorten the time for discovery. See State v. Miller, 672 So.2d 855 (Fla. 5th DCA 1996) (inappropriate to penalize state for not voluntarily waiving its right under rule 3.220(b) where defendant did not move for, and court did not order, shortening of compliance period).

We have considered State v. Del Gaudio, 445 So.2d 605, 611 (Fla. 3d DCA), rev. denied, 453 So.2d 45 (Fla.1984), but deem it inapposite. In Del Gaudio, the court was concerned with prejudice to the defendant by last minute delays caused by a violation of discovery rules as the speedy trial time was about to expire. Here, there is no such issue. For that reason, we also do not deem George v. Trettis, 500 So.2d 588 (Fla. 2d DCA 1986) and Lobik v. State, 506 So.2d 1077 (Fla. 2d DCA 1987) to be in conflict with this opinion. Appellant cites no authority applying the Del Gaudio principle under these circumstances, nor has Appellant furnished any authority indicating that it is an abuse of trial court discretion, per se, to schedule a first trial date three weeks after arraignment.

Having determined that Appellant waived his right to speedy trial on May 22nd, it is not necessary to address whether he also waived it by joining in a continuance request in August 1992. As to all other issues raised, we also affirm.

GLICKSTEIN, DELL, WARNER, POLEN, KLEIN, PARIENTE, STEVENSON, SHAHOOD and GROSS, JJ., concur.

FARMER, J., dissents with opinion, in which GUNTHER, C.J., concurs.

FARMER, Judge, dissenting.

The essential problem in this case is that it was set for trial a mere 22 days after arrest and even less than that from counsel's initial appearance. The principal effect of setting such an immediate trial date, particularly on charges of murder, ³ is to force a defendant to request a continuance. Thus today's decision approves a very effective means for avoiding the speedy trial requirements of the rules of criminal procedure.

Judges now need merely set the case for trial within 20 days of arraignment. That will force the hapless defendant into requesting a continuance because he is, quite understandably, not ready for trial. That request for a continuance will then necessarily waive the general speedy trial provision. He may therefore purchase his right to due process but apparently only at the price of his speedy trial right under the rule. Because as a practical matter this procedure eviscerates a defendant's rights to due process, as well as the right to discovery and speedy trial under the rules, I must dissent.

Both the right to due process ⁴ and the right to a speedy trial ⁵ come from the identical concern: the manipulation of the timing of a criminal trial to frustrate a defendant's ability to defend the charges against him. The drafters of these constitutional provisions were very familiar with the use of both rushed and delayed trials by the agents of George III to ensure conviction and punishment of dissenters. Thus these rights emerged from a single injustice: the use of the timing of criminal trials to enhance the prospects of the state for convictions. They remedy the same evil. The state can neither inordinately rush nor unreasonably delay a defendant from going to trial. Yet, under today's decision, the one is forfeited by the necessary assertion of the other.

As I pointed out in the panel opinion, rule 3.191(a) provides generally that every person charged with a felony shall be brought to trial within 175 days. ⁶ At the same time, a defendant is also given the right by rule 3.191(b) to have the trial within 50 days of filing a demand. If defendant elects to assert this right for an earlier speedy trial, the trial must then begin no sooner than 5 days and not later than 50 days from the filing of the demand. ⁷ The text of subdivision (a) clearly states that it governs all criminal prosecutions and that every defendant, without any demand or action on his part, "shall be...