Martin v. State, 83-415

• Decision Date: 02 May 1984
• Docket Number: No. 83-415,83-415
• Citation: 449 So.2d 939
• Parties: Otilio MARTIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 939

449 So.2d 939

Otilio MARTIN, Appellant, v. STATE of Florida, Appellee.

No. 83-415.

District Court of Appeal of Florida,

Fourth District.

May 2, 1984.

Rehearing Denied May 30, 1984.

Richard L. Jorandby, Public Defender, Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Appellant challenges the denial of his motion for discharge, predicated upon a violation of the speedy trial rule, 3.191, Florida Rules of Criminal Procedure.

Rule 3.191(d)(2) provides that speedy trial time may be extended by order of court or upon stipulation, either written or announced to the court. The record in this cause reflects no court order or stipulation.

The State correctly points out that a waiver may be proved by other means. However, herein no contemporaneous record activity supports the trial judge's recollection, as was the case in Redden v. State, 429 So.2d 99 (Fla. 2d DCA 1983), nor did the state present the testimony of the attorney who purportedly waived speedy trial on appellant's behalf, see, Culver v. State, 416 So.2d 855 (Fla. 1st DCA 1982).

We hold that the State failed to present sufficient competent evidence to demonstrate that appellant, either in person or by counsel, waived speedy trial. Therefore, we reverse the trial court's order denying appellant's motion for discharge and remand this cause with instructions to enter an appropriate order discharging appellant.

REVERSED and REMANDED.

DELL and WALDEN, JJ., concur.

HERSEY, J., dissents with opinion.

HERSEY, Judge, dissenting.

Appellant was charged with trafficking in cannabis in March of 1982 and the Public Defender's office was appointed to defend him in the criminal proceedings. Subsequently, he obtained private counsel, Miguel A. Orta, and the Public Defender's office was permitted to withdraw. Negotiations toward a plea bargain were entered into between counsel, but they proved to be unproductive. Private counsel withdrew and the Public Defender's office was again appointed to represent Mr. Martin. Shortly after the expiration of 180 days, a motion for discharge under Rule 3.191, Florida Rules of Criminal Procedure, was filed. At a subsequent hearing on that motion for discharge an Assistant State's Attorney represented to the court that prior to expiration of the speedy trial period appellant's privately retained counsel, Miguel A. Orta, had agreed with the office of the State's Attorney to waive speedy trial, indicating that counsel would so advise the trial court and would file a written waiver of speedy trial. Also at the hearing on the motion for discharge, the state presented the testimony of Ms. Righton, the trial court's secretary, to the effect that Mr. Orta had, indeed, called her requesting that the trial court be advised that appellant was waiving speedy trial and would in due course file a written waiver. Obviously, no such written waiver was forthcoming. The trial court also stated on the record that he recalled being advised at the time by his secretary, Ms. Righton, of the nature of the telephone call concerning which she testified.

Rule 3.191(d)(2) provides that the speedy trial period may be extended by stipulation "announced to the court or signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced."

That a stipulation for waiver of the speedy trial rule was entered into here is evidenced by the testimony of Ms. Righton, the trial court's own recollection, and comments made on the record by an Assistant...