Gallego v. Purdy, 82-748

• Decision Date: 23 June 1982
• Docket Number: No. 82-748,82-748
• Citation: 415 So.2d 166
• Court: Florida District Court of Appeals
• Parties: Mario GALLEGO, Petitioner, v. The Honorable H. Mark PURDY as Judge of the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Respondent.

Page 166

415 So.2d 166

Mario GALLEGO, Petitioner, v. The Honorable H. Mark PURDY as Judge of the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Respondent.

No. 82-748.

District Court of Appeal of Florida Fourth District.

June 23, 1982.

Stephen J. Golembe of Law Offices of Mishkin & Golembe, Miami, for petitioner.

Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondent.

HERSEY, Judge.

Mario Gallego was arrested on February 26, 1981, and on April 22, 1981, was charged by Information with trafficking in cocaine in an amount of 28 grams or more, but less than 200 grams. Subsequently, on one or more occasions, defense continuances were granted. On February 23, 1982, a motion by the state to amend the Information to charge trafficking in cocaine in an amount in excess of 400 grams was granted. It is undisputed that there were two separate amounts of cocaine and that they were involved in the same criminal episode.

Gallego's motion for discharge directed to the amended information and based upon a violation of the speedy trial rule was denied. By petition for writ of prohibition Gallego seeks to have this court oust the trial court of its jurisdiction to proceed on the enhanced charge.

As we did in Sherrod v. Franza, 396 So.2d 1136 (Fla. 4th DCA 1981), we deny the petition primarily on its merits but also on the grounds of the unavailability of prohibition to redress an alleged violation of the speedy trial rule.

Addressing, first, the merits, we find no violation of the speedy trial rule. A defense continuance constitutes a specific waiver of the speedy trial rule (or, more properly, an estoppel precluding reliance on the rule) as to all charges which emanate from a single criminal episode. State v. DeSimone, 386 So.2d 283 (Fla. 4th DCA 1980); State v. Corlew, 382 So.2d 787 (Fla. 2d DCA 1980).

Second, we adhere to our position in Sherrod that prohibition, and its counterpart mandamus, do not lie to review an alleged violation of the speedy trial rule. We differ in this view from the Fifth District, Bates v. Keating, 396 So.2d 1172 (Fla. 5th DCA 1981), but see Bouchacra v. Leffler, 413 So.2d 791, (Fla. 5th DCA, Case No. 82-151, opinion filed April 7, 1982); and the Third District, V.C. v. Ferguson, --- So.2d ---- (Fla. 3d DCA Case No. 82-323, opinion filed April 20, 1982).

The holding in Sherrod that prerogative writs are unavailable to remedy speedy trial rule violations is based upon (1) the fact that conceptually neither prohibition nor mandamus is appropriately invoked to redress the mere violation of a procedural rule and (2) precedents in the case law from the Florida Supreme Court which support the use of these extraordinary remedies involve a violation of the constitutional right to speedy trial even when couched in terms of the speedy trial statute which preceded the speedy trial rule.

Both prohibition and mandamus are extraordinary remedies. They have been utilized interchangeably in the area of violations of the constitutional right to speedy trial. Use of the writ of prohibition stops the proceedings and prevents the inferior court from continuing to exercise its jurisdiction or from acting in excess of its jurisdiction. Mandamus, while accomplishing primarily the same result, by its nature is affirmative in operation and its most frequent consequence is discharge of the defendant and dismissal of the criminal charges. Neither writ is available to address a mere error of law or an abuse of discretion by the trial court.

In English v. McCrary, 348 So.2d 293, 296-298 (Fla.1977), the supreme court said of the writ of prohibition:

Prohibition is an extraordinary writ, a prerogative writ, extremely narrow in scope and operation, by which a superior court, having appellate and supervisory jurisdiction over an inferior court or tribunal possessing judicial or quasi-judicial power, may prevent such inferior court or tribunal from exceeding jurisdiction or usurping jurisdiction over matters not within its jurisdiction.

....

Prohibition lies to prevent an inferior tribunal from acting in excess of jurisdiction but not to prevent an erroneous exercise of jurisdiction.

....

Abuse of discretion by the inferior tribunal acting within its jurisdiction is not a matter to be determined by prohibition. State v. Hunt, 70 So.2d 301 (Fla.1954), State ex rel. Jacksonville Ice & Cold Storage Co. v. Gray et al., 130 Fla. 359, 177 So. 849 (1937). If the existence of jurisdiction depends on controverted facts which the inferior court has the jurisdiction to determine, and the court errs in the exercise thereof, prohibition is not available. State ex rel. Park v. H. T. Poindexter & Sons Merchandise Co., 149 Fla. 765, 7 So.2d 452 (1941), Burkhart v. Circuit Court of Eleventh Judicial Circuit [146 Fla. 457, 1 So.2d 872], supra, State ex rel. Schwarz v. Heffernan, 142 Fla. 137, 194 So. 313 (1940), State v. Drumright, 116 Fla. 496, 156 So. 721 (1934).

The suggestion for writ of prohibition must affirmatively show lack of jurisdiction in the lower court. Department of Public Safety v. Koonce, 147 Fla. 616, 3 So.2d 331 (1941), State v. Rowe, 104 So.2d 134 (Fla. 1st DCA 1958).

In Garrett v. Johnson, 112 Fla. 112, 113, 150 So. 239, 239 (1933), the court said of the writ of mandamus:

Mandamus is a remedy correlative to that of prohibition as a means of testing jurisdiction in pending cases.

If in this case prohibition would lie to restrain jurisdiction had the order been the reverse of what it was, that is to say, had the circuit court's order been that the cause should not be dismissed because the court did have jurisdiction, then mandamus as a corresponding remedy for a contrary order will lie to test the correctness of the order that was made, holding that the circuit court did not have jurisdiction, since both mandamus and prohibition are remedies available in an appellate court of superior jurisdiction to control and supervise the exercise of jurisdiction by courts having final appellate jurisdiction to decide the jurisdictional questions involved.

In State ex rel. Allen v. Rose, 123 Fla. 544, 167 So. 21 (1936), the parameters of the writ were carefully and fully explored. The court explained:

In one of our recent cases on this subject, State ex rel. Board of Commissioners v. Helseth et al., 104 Fla. 208, 140 So. 655, 660, Mr. Justice Davis, speaking for this court, said: "A writ of mandamus is issued only to require the performance of a plain official duty on the part of respondents. It is issued to require the person to whom it is directed to perform some act which the law enjoins as a duty, and it confers no power and creates no duty of itself." And in State v. Richards, 50 Fla. 284, 39 So. 152, this court held that mandamus lies to compel the performance of a ministerial duty, where such duty does not involve the exercise of discretion or judgment by the officer, and the relator has a clear legal right to have such duty performed.... Where the duty is discretionary, mandamus does not lie.

....

Undoubtedly, as a general rule, mandamus is a remedy to command the performance of a ministerial act which the relator has the right to demand and which it is the plain official duty of the respondent to perform....

Rights and remedies are so closely interwoven in the law that it becomes necessary to clearness of thought and the efficiency of judicial procedure to preserve as distinctly as possible the lines of demarcation between the different forms of remedies. Rights are more important than remedies and substantive law is more important than adjective law. But both are important. Remedies are a means to an end. The end is the efficient ascertainment and administration of justice under the law. But this highly desirable end can be best reached when the proper means to arrive at it are adopted. (citations omitted).

Id. 167 So. at 23-24.

By supreme court fiat, then, violation of the constitutional speedy trial rights of an accused divests the trial court of jurisdiction to proceed with adjudication and renders appropriate the use of extraordinary writs. Neither logic nor precedent dictate that the same result should follow from a violation of the procedural speedy trial rule. It is indeed seldom that the legal issue of whether or not there has been a violation of the speedy trial rule comes to the appellate court unencumbered by issues of fact. Were it otherwise, the trial court would most likely have put the issue properly to rest in the first instance. An application for these extraordinary remedies, then, has its genesis in an error, either of fact or law or both, by the trial court. Further confusing the issue may be controversy concerning the date the speedy trial period began to run, what crimes arose out of the single criminal episode for which the accused was taken into custody, whether custody resulted from different criminal activity or occurred in a different jurisdiction, whether the accused was continuously available for trial, whether there was a defense continuance or whether a continuance was properly chargeable to the defense, whether there exist facts constituting a waiver and other such factors. Under these circumstances we are disinclined to view speedy trial rule cases as involving simply a ministerial function which the accused has the right to demand and which it is the plain (and simple?) official duty of the trial court to perform. We do not comprehend that the ends of justice require that the trial court be temporarily divested of jurisdiction mid-proceedings in order that an appellate court may consider whether the mere passage of time has permanently ousted the court of its jurisdiction in the matter.

It is also clear that the 180 day speedy trial rule period is not co-extensive with the constitutional period. The latter is measured by tests of reasonableness and prejudice. Once the speedy trial...