Lobik v. State, 86-368
| Decision Date | 15 April 1987 |
| Docket Number | No. 86-368,86-368 |
| Citation | 506 So.2d 1077,12 Fla. L. Weekly 1071 |
| Parties | 12 Fla. L. Weekly 1071 Jeffrey M. LOBIK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow and Brad Permar, Asst. Public Defender, Clearwater, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
Lobik was arrested on March 14, 1985. He was charged by information with burglary of a dwelling, a second degree felony; and grand theft, a third degree felony. Lobik filed an affidavit of insolvency and a public defender was appointed. The same public defender represented the alleged coperpetrator (Hoedl) of the crimes charged. On April 4, 1985, Lobik demanded discovery from the state. He was then arraigned and pleaded not guilty. A pretrial conference was scheduled for June. A list of witnesses was supplied to defense counsel by the state on May 2, 1985, but the list did not include Hoedl's name. In May, the public defender withdrew his representation of Hoedl. In July, Hoedl changed his plea from not guilty and was found guilty and placed on probation. At the pretrial conference in June, Lobik's trial date was set for August 28, 1985.
On August 23, 1985 (five days before trial), defense counsel received an additional list of witnesses from the state attorney's office which then included Hoedl's name. Hoedl was in the Sumter Correctional Institution and was transported to the Pinellas County Jail on the afternoon of August 27, 1985. Defense counsel obtained a waiver of Hoedl's attorney/client privilege on the morning of trial and proceeded to depose Hoedl. During this deposition, Hoedl made statements which were in major conflict with the statements of the state's other witnesses who were inexplicably unavailable for trial on the scheduled trial date. 1 Hoedl's latest testimony was also inconsistent with his earlier statements previously given to the public defender.
Due to the drastic change in the testimony by witness Hoedl which would be elicited by the state, defense counsel moved for a continuance specifically not waiving speedy trial. The state responded that any continuance should be charged to defense counsel and accompanied with a waiver of speedy trial because of the unavailability of the witnesses that defense counsel anticipated the state would call.
The court granted the motion for continuance and found a waiver of speedy trial. Thereupon, some discussion was held concerning rescheduling the trial within the initial speedy trial time. However, such rescheduling could not be accomplished due to the congested court calendar. Thereafter, the state again indicated that the continuance was at Lobik's request and, therefore, speedy trial was waived. The court agreed and set the trial date for November 13. At this juncture, the public defender stood mute. On September 24, 1985, defense counsel filed a motion for discharge which was denied by the trial court. The case did not go to trial on November 13 but was continued at the state's request due to the unavailability of a witness. Thereupon, appellant changed his plea to nolo contendere, reserving his right to appeal the court's ruling on the motion for discharge and was sentenced on February 4, 1986. This timely appeal followed.
The general rule is that "a defense continuance usually constitutes a waiver of the defendant's right to trial within the speedy trial period." State v. Vukojevich, 392 So.2d 297 (Fla. 2d DCA 1980). Also generally, a state continuance does not extend speedy trial time absent a finding of exceptional circumstances under Florida Rule of Criminal Procedure 3.191(f). State v. Burris, 424 So.2d 128 (Fla. 1st DCA 1982). The determination of which party to charge with the continuance does not turn solely on which party moves for the continuance. To automatically charge the moving party with the continuance without further delving into the facts surrounding the motion would have the effect of aggrandizing trial tactics at the cost of dishonoring a defendant's speedy trial rights. Such is the case here. As illustrated by the detailed facts set out above, defense counsel was all but forced to request a continuance based on the trial tactics of the state. We must note that bad faith on the part of the state was neither alleged nor apparent from the record. However, the state's "bait and switch" game of substituting key witnesses...
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Banks v. State, 93-0983
...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 circumstance......
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...denied, 541 So.2d 1172 (Fla.1988); Brown v. State, 527 So.2d 209 (Fla. 3d DCA), rev. denied, 534 So.2d 398 (Fla.1988); Lobik v. State, 506 So.2d 1077 (Fla. 2d DCA 1987); George v. Trettis, 500 So.2d 588 (Fla. 2d DCA 1986); State v. Williams, 497 So.2d 730 (Fla. 2d DCA 1986); Perez v. State,......
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McKinney v. Yawn
...3.191(p)(3) of the rule that also included the requirement that the defendant be without fault. We also distinguish Lobik v. State, 506 So.2d 1077 (Fla. 2d DCA 1987), a case factually more similar to the one now under review. Lobik moved for a continuance on grounds that a key witness had c......
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Birken v. Scheer, 87-2893
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Speedy trial, speedy games.
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