Carroll v. State

• Decision Date: 12 July 1971
• Docket Number: No. 40475,40475
• Citation: 251 So.2d 866
• Parties: Earl Jackson CARROLL, Petitioner, v. The STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 866

251 So.2d 866

Earl Jackson CARROLL, Petitioner, v. The STATE of Florida, Respondent.

No. 40475.

Supreme Court of Florida.

July 12, 1971.

Rehearing Denied Sept. 17, 1971.

Harold Mendelow, of Manners & Amoon, Miami, for petitioner.

Robert L. Shevin, Atty. Gen., Richard E. Gerstein, State's Atty., and Joseph Durant, Asst. State's Atty., for respondent.

McCAIN, Justice.

Petitioner seeks certiorari to the Third District Court of Appeal which reversed the order of the Dade County Criminal Court of Record dismissing charges against petitioner pursuant to former Fla.Stat. § 915.01(2), F.S.A., commonly referred to as the speedy trial statute. See State v. Carroll, 240 So.2d 205 (Fla.App.3rd, 1970).

The terms of court under consideration in this review, are: Term 1, February 11 through April 7, 1969; Term 2, April 8 through June 9, 1969; Term 3, June 10 through August 11, 1969; Term 4, August 12 through October 13, 1969; Term 5, October 14 through December 8, 1969; Term 6, December 9, 1969 through February 9, 1970; Term 7, February 10 through April 13, 1970; Term 8, April 14 through June 8, 1970; Term 9, June 9 through August 10, 1970.

On April 1, 1969, petitioner was indicted by a grand jury, arrested, and released on bond. On April 2, 1969, his first demand for speedy trial was filed, followed by demands on April 10, 1969, June 13, 1969, October 6, 1969, December 16, 1969, February 16, 1970, and April 23, 1970. Of the terms above described demands were filed in all but Terms 5 and 9.

On April 11, 1969, the state filed an information based upon the indictment charging petitioner and one Sy Chadroff with (1) conspiracy to solicit a bribe and (2) soliciting a bribe.

Term 1 alluded to above cannot be considered a Full term because the arrest occurred during that term, on April 1, 1969; however, petitioner's initial demand for speedy trial filed during that term constituted the first of three consecutive demands under the statute.

A second demand was filed during Term 2, on April 10, 1969, and the term expired without further events. This term constituted the first full term following petitioner's arrest.

Prior to the expiration of the second full term (Term 3, supra), and after the filing of a third demand for trial, petitioner moved, on July 22, 1969, to dismiss the information. On July 24, 1969, the trial judge orally granted the motion on the grounds that petitioner's co-conspirator had been discharged because of immunity, which precluded petitioner from prosecution. Parenthetically, we note that the immunity grant and ultimate discharge of the co-conspirator, Sy Chadroff, was later reversed in State v. Chadroff, 234 So.2d 412 (Fla.App.3rd, 1970).

During the Third full term (September 2, 1969) the court's oral order dismissing the information was reduced to writing. The state filed a notice of appeal (September 22, 1969).

During the Seventh full term (April 20, 1970) the District Court of Appeal reversed the dismissal and its mandate was filed on May 8, 1970. State v. Carroll, 234 So.2d 415 (Fla.App.3rd 1970). Trial was then set for July 6, 1970. Petitioner moved (May 22, 1970) for discharge, alleging violation of his right to speedy trial under Fla.Stat. § 915.01(2), F.S.A.

During the Eighth full term, the trial judge granted petitioner's motion for discharge (June 22, 1970) and the state appealed (July 2, 1970).

On October 28, 1970, the District Court of Appeal reversed petitioner's discharge. State v. Carroll, 240 So.2d 205 (Fla.App.3rd, 1970). This certiorari proceeding followed.

In its decision the District Court of Appeal stated:

'The three term period in which the defendant could have been brought to trial had not expired when the information was dismissed. So long as the dismissal order stood, there could be no trial on that information. It seems clear without a need for further elaboration that the speedy trial statute did not afford a basis for discharging the defendant in the circumstances disclosed.'

Obviously, petitioner filed demands during Three consecutive terms of court and Three full terms of court expired without trial. The District Court of Appeal apparently deemed all time tolled pending appeal by the state from the trial judge's dismissal of the information. We disagree and find conflict with State ex rel. Johnson v. Edwards, 233 So.2d 393 (Fla.1970), and State ex rel. Leon v. Baker, 238 So.2d 281 (Fla.1970).

Initially, it should be pointed out that Fla.Stat. § 915.01(2), F.S.A., implementing the constitutional right to a speedy trial and requiring trial after three successive demands during three full terms of court, also reads in pretinent part:

'* * * he shall be forever discharged from the crime; provided, however, the attendance of the witnesses is not prevented by himself, and He has filed no pleading seeking a continuance.' (emphasis supplied)

It is clear that petitioner did not prevent the attendance of witnesses. Neither did he seek a continuance. He sought a dismissal of the information on grounds meritorious enough to win the agreement of the trial judge. Under these circumstances, his action could hardly be considered either dilatory or capricious, or a disguised attempt to obtain a continuance. On the contrary, petitioner's assertions, coupled with the judge's ruling, give every indicia of sincerity and genuineness. Ergo, it becomes necessary to consider whether the pendency of the state's appeal is to be deemed a 'continuance' or 'tolling of time' as a matter of law under Fla.Stat. § 915.01(2), F.S.A. We think not.

In State ex rel. Johnson v. Edwards, Supra, we stated:

'The accused is entitled to a speedy trial and the only delay which is to be excused is delay which is caused by the accused;'

However, in that case we also distinctly stated the following:

'Respondent now argues that in seeking his constitutional right to a trial by an impartial jury, petitioner forfeited his constitutional right to a speedy trial.

'We do not believe such to be the case. While Sec. 915.01(2) should apply, and the continuance provision apply, when a continuance is sought for the mere convenience of the accused, we hold that it was not intended to apply when an accused takes such steps as are necessary to protect his fundamental rights.'

Sub judice, should petitioner's good faith attempt to obtain discharge because of insufficiency of the information (which convinced the trial judge) preclude him from asserting his right to a speedy trial under the statute? Again we think not.

An accused has a right to be charged by an information free of defects and fatalities patent on its face, such as misjoinder and vagueness. Rule 1.140, CrRP, 33 F.S.A. The sufficiency or validity of an information in this respect may be tested by motion to dismiss. Rule 1.190(b), CrRP. To hold that a genuine motion testing the validity of an information tolls the running of the speedy trial statute places an accused in the anomalous position of waiving his guarantee of a speedy trial in order to assert the insufficiency of the information lodged against him. This we decline to do. Accord, see 27 Wash. & Lee L.Rev. 175, #1, 'The Defendant's Dilemma: Valid Charge or Speedy Trial.'

Such a result accords not only with the language of Fla.Stat. § 915.01(2), F.S.A., but also without our pronouncement in Johnson, supra, and in State ex rel. Leon v. Baker, Supra, wherein we stated:

'By agreeing to participate in some proceeding at a certain date within three successive terms, a defendant does not waive the right to protect himself should trial not materialize through no fault of his own by the end of three terms.'

The information herein was originally dismissed, not because the charge against petitioner was improper, but because of a misjoinder of a co-conspirator who had received immunity and been discharged. It was only after petitioner's motion to dismiss was granted that the discharge of the co-conspirator was reversed on appeal.

The state could easily have filed another information against petitioner alone and proceeded to trial. Instead, it chose to appeal the dismissal of the original information joining the two defendants, which it was clearly the state's right to do. State v. Schroeder, 112 So.2d 257 (Fla.1959). In such instance, however, the state's election to appeal did not toll or stay the running of the time within which petitioner was entitled to a speedy trial, when the same had been demanded properly under the statute.

Although it may appear at first blush that this result allows petitioner an unfair advantage over the state, we conclude that the equities are balanced and the parties evenly pitted against each other in these matters involving speedy trial under Fla.Stat. § 915.01, F.S.A.

The state exercised its right to appeal under the provisions of Fla.Stat. § 924.07, F.S.A., providing in part:

' § 924.07. Appeal by State.--An appeal may be taken by the state from:

'(1) An order quashing an indictment or information or any count thereof; * * *'

Interestingly, no stay of proceedings is automatically invoked by statute or rule when such an appeal is taken. Instead, the automatic stay proceeding afforded the state is contained in Fla.Stat. § 924.071, F.S.A., providing in pertinent part:

'(1) The state may appeal from a pretrial order quashing a search warrant or suppressing evidence * * * or suppressing a confession or admission made by a defendant. * * *

'(2) The taking of such an appeal by the State before the trial commences shall automatically stay the cause in which the order appealed from is entered * * * until such appeal is determined * * *.'

The distinction between these two statutes, one granting an...