Moore v. State, 77-532

• Decision Date: 09 May 1978
• Docket Number: No. 77-532,77-532
• Citation: 358 So.2d 1129
• Parties: Jackie Lee MOORE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1129

358 So.2d 1129

Jackie Lee MOORE, Appellant, v. STATE of Florida, Appellee.

No. 77-532.

District Court of Appeal of Florida,Fourth District.

May 9, 1978.

Rehearing Denied June 7, 1978.

Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Broward County, Fort Lauderdale, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, West Palm Beach, for appellee.

LETTS, Judge.

In this case we are faced with yet another appeal spawned by Fla.R.Crim.P. 3.191(a)(1), the speedy trial rule. On Monday, January 3, 1977, the last day of appellee's 180 day trial period, a large body of prospective jurors was sworn in by the clerk in readiness for examination as to their qualifications to serve as jurors. None of these jurors were actually seated for voir dire examination in appellant's case, nor was any other action taken with reference to his particular trial on that day. The trial judge denied the ensuing motion for discharge for violation of the 180 day rule from which the accused appeals. We affirm.

We affirm, somewhat reluctantly. We are not offended at the thought that the initial swearing should prove sufficient to toll the speedy trial time; however, we find it difficult to accept the premise that this commences a particular trial. Notwithstanding our difficulty, the end result of this affirmance permits prospective jurors to be sworn on a Monday, in accordance with Fla.R.Crim.P. 3.300, and not actually be examined for the defendant's particular trial until Friday, four days beyond the 180 day limit. Two appellate cases have dealt with these identical facts and have come to an opposite and more sensible conclusion than we do now. Their opinion is that the defendant in such circumstances should be discharged: Hall v. State, 348 So.2d 932 (Fla. 2d DCA 1977) and State v. May, 332 So.2d 146 (Fla. 3rd DCA 1976) cert. den. 339 So.2d 1172 (Fla.1977). ¹ However, we feel compelled after a close reading of, the applicable rule and the Supreme Court case of State ex rel. Maines v. Baker, 254 So.2d 207 (Fla.1971) to disagree with our sister courts. In Maines, identical facts existed except that late on the same day, voir dire for the defendant's particular trial did commence. Notwithstanding this important factual distinction, it does not appear to us that it was essential to the court's decision which upheld Rule 3.191(a)(3) and stated that it "seems clear". Accordingly, we do not believe that the holding of Maines required the voir dire to begin on the same day despite the fact that it did begin. All that was required was the initial swearing. ²

The Supreme Court further stated that "we feel it necessary to declare (Rule 3.191(a)(3)) constitutional", Maines, supra. In particular, that rule states in toto:

Commencement of Trial. A person shall be deemed to have been brought to trial if the trial commences within the time herein provided. The trial is deemed to have commenced when the trial jury panel is sworn for voir dire examination, or, upon waiver of a jury trial, when the trial proceedings begin before the judge. (emphasis supplied.)

Accordingly we see no alternative but to affirm the trial court's ruling, although it is hard indeed to explain to a still...