McKinney v. Yawn

• Decision Date: 04 October 1993
• Docket Number: No. 93-1528,93-1528
• Parties: 18 Fla. L. Weekly D2187 Clarence McKINNEY, Petitioner, v. Honorable Theron A. YAWN, Jr., Respondent.
• Court: Florida District Court of Appeals

Page 885

625 So.2d 885

18 Fla. L. Weekly D2187

Clarence McKINNEY, Petitioner, v. Honorable Theron A. YAWN, Jr., Respondent.

No. 93-1528.

District Court of Appeal of Florida,

First District.

Oct. 4, 1993.

Rehearing Denied Nov. 19, 1993.

Robert A. Rush, Gainesville, for petitioner.

Robert A. Butterworth, Atty. Gen. and Charlie McCoy, Asst. Atty. Gen., for respondent.

ZEHMER, Chief Judge.

Petitioner, Clarence McKinney, seeks a writ of prohibition pursuant to rule 3.191, Florida Rules of Criminal Procedure, on grounds that his right to speedy trial was violated and that he is entitled to be discharged on the criminal charges pending against him in circuit court. We have jurisdiction in this proceeding to review the circuit court's order denying discharge. Sherrod v. Franza, 427 So.2d 161 (Fla.1983). We hold, for the reasons stated below, that petitioner has failed to show he is entitled to issuance of the writ.

In establishing that a defendant may test the jurisdiction of the trial court to proceed with the trial of pending criminal charges if the defendant is entitled to discharge pursuant to rule 3.191 for a speedy trial violation, the supreme court set forth two essential requirements in Sherrod. First, prohibition "will not lie until the defendant has first made a motion for discharge to the trial court and this motion has been denied." 427 So.2d at 164. We construe this requirement to include making the trial court aware of the motion for discharge and obtaining a ruling that denies the motion. Second, "Any factual question should be determined at this hearing, and upon collateral attack by prohibition the findings of fact made by the trial court become conclusive." 427 So.2d at 164. It is evident that this prohibition proceeding is only appropriate to review the legal sufficiency of the order denying discharge; it is not an appropriate proceeding for determining disputed issues of fact or to review the sufficiency of the evidence to support the trial court's findings on which the order denying discharge is based.

I.

The relevant history and facts pertinent to this matter are found in the parties' appendices. McKinney was charged with three criminal offenses: robbery with a deadly weapon, burglary with assault while armed, and felony murder. He was arrested on April 28, 1992, subsequently indicted by the grand jury for Bradford County, and has remained continuously in custody since that date. McKinney, either by motion or by joining in motions filed by codefendant Smith, sought and obtained continuances of trials set in August, September, and November, 1992, and January, 1993. Each continuance was unopposed by the prosecution and each was based, at least in part, on the defendants being unprepared to go to trial. These requests for continuance largely resulted from the state's failure to timely perform its discovery obligations. None of the orders granting a continuance ruled that the continuance would be charged against the state for speedy trial purposes.

Trial of the charges was rescheduled to commence on April 5, 1993. In late March 1993 (from the papers before us it is not entirely clear whether the date was actually March 25, 26, or 29), McKinney served and filed a motion for discharge pursuant to rule 3.191, a motion to compel discovery from the state, and a motion to continue the April 5 trial because of the state's untimely response to discovery requests and orders. McKinney's motion for discharge recited his arrest and incarceration since April 28, 1992, alleged more than 175 days had passed without trial, and contended the trial had not been held because the state was not ready although it had repeatedly announced it was ready. This last allegation was based on the state's having continuously furnished names of new witnesses and information concerning new evidence between March 2 and March 16, 1993. McKinney's motion for continuance was based on the state's providing discovery so late that it precluded him from being ready for trial.

A hearing on pending motions filed by McKinney and codefendant Smith was held on April 1, 1993. Although the record is not entirely clear on this point, McKinney's counsel represented at oral argument that the hearing was set by the court on its own initiative to clear up pending motions before the trial commenced. During the hearing the parties and the court addressed various pending motions filed by both defendants, but there was no direct discussion regarding McKinney's pending motion for discharge. Neither the state nor McKinney's counsel brought that motion to the court's attention during the hearing. However, during a discussion by the court with codefendant Smith and his counsel about Smith's pending demand for speedy trial (McKinney had not filed a specific request for speedy trial), it was determined that Smith was waiving his right to speedy trial, and the following exchange took place:

THE COURT: What does this do to the speedy trial rule as far as Mr. McKinney is concerned, if anything?

MR. CERVONE [Assistant State Attorney]: Nothing. Mr. McKinney has previously waived. He has never filed a specific demand.

Later in the hearing, the following occurred:

[THE COURT:] Now, if I proceed towards granting Mr. Rush's [McKinney's attorney] motion for continuance, you think you can spend that time getting your case ready for trial, or are you going to have to devote it to preparing motions?

MR. CERVONE: We do not anticipate any likelihood of developing more things. We think that what we've developed will be turned over to them through the FDLE in fairly short order. I had hoped that we would have it ready in time for March, and we obviously couldn't make that, but I think that what the Court is saying could be done.

MR. RUSH: Your Honor, from my standpoint, as long as the State gives me this evidence fairly quickly--they said they can get it in a day, but I'd certainly give them at least a week. Based upon that, that's where I'm going to start from, to see if there's anything additional. I want to get this case tried in May. My client wants to get it tried. [W]e tried to get ready for April. And so if the Court would at least give the State a time limit that they know they have to meet, then I'm sure that we'll be able to meet the trial schedule in May.

THE COURT: All right. Let's see if we can work that in here. This is going to be in the form of an order granting Mr. Rush's motion to continue the case, without objection by the State. And in keeping with usual practice, I'll ask you to draw the proposed order, Mr. Rush.

MR. RUSH: Yes, Your Honor.

THE COURT: All right. It will recite, of course, that without objection, that your motion be granted. And it will contain these provisions: that the defendant, McKinney (sic), waives his right to speedy trial--and consents to the continuance, Mr. Replogle [Smith's counsel]?

MR. RUSH: That would be Smith, Your Honor. That's his client.

* * * * * *

THE COURT: All right, sir. Both defendants consent to the continuance, and that Defendant Smith waives his speedy trial rights....

At no time did McKinney's counsel inform the court or the state attorney, or otherwise bring to the court's attention, that McKinney contended that he had not previously waived the speedy trial requirement or that, notwithstanding his motion for continuance under consideration by the court, he was persisting in his recently filed motion for discharge for the asserted violation of the speedy trial rule. Thus, finding that McKinney had agreed to it, the trial court granted McKinney's request for continuance from the April 5 trial date and the trial was rescheduled for May 10. At no point during the hearing did the trial court take up McKinney's motion for discharge and rule on it. A written order was entered on April 7 that contains all of the provisions specified by the trial court at the hearing, including setting the case for trial on May 10; but that order did not rule on, and thus did not deny, McKinney's motion for discharge.

On May 7, McKinney served a "Motion For Order of Discharge." This motion referred to the motion for discharge filed on "March 25, 1993," and asserted that the burden was on the state to bring the first motion on for hearing within five days and thereafter have a trial within 10 days. Because the state had not done so, the motion alleged, the trial court had lost "jurisdiction to conduct the trial of these charges." The motion was orally denied at a hearing held on May 10. No written order of denial has been entered.

II.

McKinney now petitions this court for a writ of prohibition pursuant to rule 3.191(p) and Sherrod v. Franza to review the denial of his motions for discharge. McKinney relies on two basic legal propositions to support his petition. The first postulates that where discovery is untimely furnished to the defense so that the defense will not be able to make use of it in preparation for trial, the court may properly continue the case on the defendant's request, charge the continuance to the state, and thereafter grant the defendant a discharge based on a speedy trial violation. See George v. Trettis, 500 So.2d 588 (Fla. 2d DCA 1986); State v. Williams, 497 So.2d 730 (Fla. 2d DCA 1986); State v. Del Gaudio, 445 So.2d 605 (Fla. 3d DCA), rev. denied, 453 So.2d 45 (Fla.1984). ¹ See also Lasker v. Parker, 513 So.2d 1374 (Fla. 2d DCA 1987); ² State ex rel. Wright v. Yawn, 320 So.2d 880 (Fla. 1st DCA 1975), cert. denied, 334 So.2d 609 (Fla.1976). Second, McKinney relies on cases construing Florida Rule of Criminal Procedure 3.191(p)(3) (formerly appearing at subdivisions (i)(4) and (i)(3)) which hold that where the state does not either hold a hearing on a motion for discharge within 5 days or commence the trial within 15 days, the defendant is entitled to discharge. See Ariza v. Cycmanick, 548 So.2d 304 (Fla. 5th DCA 1989); Climpson v. State, 528 So.2d 1296 (Fla. 1st DCA 1988); Lenard v....