Gonzalez v. State, s. 83-1068
| Decision Date | 13 March 1984 |
| Docket Number | 83-1164,Nos. 83-1068,s. 83-1068 |
| Citation | 447 So.2d 381 |
| Parties | Fidel GONZALEZ, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., and Lawrence Price, Certified Legal Intern, for appellee.
Before BARKDULL, HUBBART and JORGENSON, JJ.
Fidel Gonzalez entered a plea of nolo contendere to the charge of attempted first degree murder and kidnapping. A similar plea was entered for an affidavit of violation of probation alleging the foregoing substantive crimes. Gonzalez reserved his right to appeal the trial court's denial of his motion for discharge under the speedy trial rule, Fla.R.Crim.P. 3.191. We affirm.
The record reflects that counsel representing a co-defendant appeared in court and requested a continuance stating that counsel for Gonzalez had no objection. The trial court granted the co-defendant's motion for continuance and charged a continuance to all defendants. The record reflects that at the time the request for continuance was made by the co-defendant counsel for Gonzalez was not in court. During the course of the hearing on the motion for discharge counsel for Gonzalez observed,
I indicated to the court that it was no problem with a continuance at all since obviously I had just been appointed six days prior to that time and obviously it was literally impossible to depose twenty-four witnesses in a six-day period where two days of the six-day period were weekends. In my opinion at the most I acceded to [co-defendant's counsel's] request for continuance not assuming the court charged that one to me as a result of my accession to [co-defendant's counsel's] request for continuance.
The record is therefore clear that counsel for Gonzalez was aware of the continuance and acceded to it.
Under the foregoing facts we believe this case is controlled by Florida Rule of Criminal Procedure 3.191(d)(3)(ii) which provides that a motion for discharge shall be granted unless it is shown that the failure to hold the trial is attributable to the accused, a co-defendant in the same trial, or their counsel. The delay in this case is attributable to the co-defendant's need for further discovery. Gonzalez made no objection to the continuance of his co-defendant and did not move to sever; nor did he...
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...such as Castillo's, because a probation revocation proceeding is a sentencing function as opposed to a trial. Gonzalez v. State, 447 So. 2d 381, 382 (Fla. 3d DCA 1984) (per curiam). The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a spe......
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