Casimir v. McDonough

• Decision Date: 07 June 2006
• Docket Number: No. 3D05-2547.,3D05-2547.
• Citation: 932 So.2d 471
• Parties: Jimmy CASIMIR, Petitioner, v. James R. McDONOUGH, Secretary, Department of Corrections, Respondent.
• Court: Florida District Court of Appeals

932 So.2d 471

Jimmy CASIMIR, Petitioner, v. James R. McDONOUGH, Secretary, Department of Corrections, Respondent.

No. 3D05-2547.

District Court of Appeal of Florida, Third District.

June 7, 2006.

Rehearing Denied July 11, 2006.

Jimmy Casimir, in proper person.

Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for respondent.

Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

ROTHENBERG, Judge.

Jimmy Casimir ("Casimir") seeks a Writ of Habeas Corpus pursuant to Rule 9.141(c), Florida Rules of Appellate Procedure, based upon five claims of ineffective assistance of appellate counsel. As we conclude that Casimir's claims are without merit, we deny the petition.

Casimir was convicted after a jury trial of the following offenses: two counts of attempted first degree murder with a firearm, two counts of attempted second degree murder with a firearm, and two counts of conspiracy to commit first degree murder. On February 16, 2005, this court affirmed the judgment and sentences imposed. Casimir v. State, 894 So.2d 252 (Fla. 3d DCA 2005). Casimir asserts that appellate counsel's failure to raise four claims and his abandonment of an additional claim constitute ineffective assistance of appellate counsel, warranting a discharge of the charges or a new trial.

Casimir's first claim of ineffective assistance is based upon appellate counsel's failure to raise what Casimir contends was a violation of his right to a speedy trial. Appellate counsel is, however, not required to raise a meritless claim. See Card v. State, 497 So.2d 1169, 1177 (Fla.1986)(appellate counsel cannot be labeled ineffective for failing to raise issues which have no merit). We find no merit to this claim as (1) the record reflects a waiver of the right to a speedy trial on November 11, 2002, and (2) the trial actually commenced within the speedy trial period. A joint continuance was granted on November 11, 2002, well before expiration of the speedy trial period on February 24, 2003, thereby resulting in a waiver of the right to a speedy trial. The trial commenced on February 12, 2003, twelve days prior to the expiration of the speedy trial period.

Casimir failed to address the November 11, 2002 waiver, arguing only that, because the jury was selected and sworn on February 12, 2003 and the trial adjourned until February 25, 2003, he was entitled to a discharge of the charges against him. In Moore v. State, 368 So.2d 1291 (Fla.1979), the Florida Supreme Court specifically held that when the jury panel is sworn for voir dire examination, the trial is deemed to have commenced for the purpose of the speedy trial rule. In McDermott v. State, 383 So.2d 712 (Fla. 3d DCA 1980), this court recognized that when the jury panel is sworn, the trial commences, and therefore, a continuance during the process of the trial is not governed by the speedy trial rule, and that a continuance during the process, even when it results in a lapse between jury selection and the examination of witnesses, lies within the sound discretion of the court. Id. at 714. Therefore, the issue is whether the interruption resulted in prejudice to the defendant. Id. In Holmes v. State, 883 So.2d 350 (Fla. 3d DCA 2004), a thirteen-day delay between the first and the second day of voir dire was found not to be unreasonable where good cause was shown and no prejudice was demonstrated. See also Johnson v. State, 660 So.2d 648 (Fla.1995)(wherein a twenty-four-day delay was found permissible between the conclusion of voir dire and the commencement of trial); Hernandez v. State, 572 So.2d 969, 972 n. 2 (Fla. 3d DCA 1990)(eleven-day delay; no showing of prejudice); Compo v. State, 525 So.2d 505, 506 (Fla. 2d DCA 1988)(twelve-day delay; no showing of prejudice). As the delay in the instant case was for thirteen days, the basis for the delay was for good cause, and no prejudice was shown, we find that even if there had not been a waiver of the speedy trial period by Casimir, the trial commenced within the speedy trial period, and the delay between jury selection and the examination of witnesses does not entitle Casimir to a discharge of the charges against him.

Casimir's second claim is that, while trial counsel did not properly preserve the issue below, appellate counsel should have raised, as fundamental, the State's voir dire examination, which he contends was a pre-trying of the State's case. The complained-of inquiry was regarding the jury's ability to weigh the evidence if they found that they did not like the witnesses. As we conclude that the inquiry was proper, and the issue was not preserved, appellate counsel did not provide ineffective assistance of counsel by failing to raise the issue on direct appeal.

We likewise find Casimir's remaining claims meritless. We find no error regarding the trial court's ruling allowing the State to call as its witness Cornelius Haggerty, a private investigator hired by the defense and who...