Negron v. State

• Citation: 306 So.2d 104
• Decision Date: 13 November 1974
• Docket Number: No. 45109,45109
• Parties: Ozzie Joseph NEGRON and Teresa Negron, Petitioners, v. STATE of Florida, Respondent.
• Court: United States State Supreme Court of Florida

Page 104

306 So.2d 104

Ozzie Joseph NEGRON and Teresa Negron, Petitioners, v. STATE of Florida, Respondent.

No. 45109.

Supreme Court of Florida.

Nov. 13, 1974.

Rehearing Denied Feb. 4, 1975.

Aram P. Goshgarian, Miami Beach, for petitioners.

Robert L. Shevin, Atty. Gen., and Frank B. Kessler, Asst. Atty. Gen., for respondent.

PER CURIAM.

We review by writ of conflict certiorari the per curiam decision of the District Court of Appeal, Fourth District, in the consolidated appeals of Ozzie and Teresa Negron v. State, 289 So.2d 61 (1974).

Petitioners, Ozzie and Teresa Negron, were charged with grand larceny by information filed May 18, 1972 which alleged that petitioners had stolen fishing reels, drill sets and wrench sets of a value of more than $100 from Sears, Roebuck and Company.

It appears from the record proper both of the defendants were noticed on June 12, 1972 for trial to be held July 20, 1972. The case was continued by joint motions of the State and defendants. Thereafter, a notice was entered on August 4, 1972 setting the case of each defendant for trial on September 7, 1972. The trial was continued at the instance of the State. Again on September 25, 1972 notice was entered setting trial of the cause on October 27, 1972. That trial date was continued upon joint motion of the State and defendants. On November 8, 1972 the case was set for trial to be had on December 8, 1972 for each of the defendants. That trial date was on December 6, 1972 continued by motion of the defendants. Next, on December 19, 1972 the case as to each of the defendants was set for trial to be had on January 17, 1973; that trial date was continued at the instance of the State because of the unavailability of a material witness. However, on January 29, 1973 the defendant Ozzie Negron was noticed for trial on February 23, 1973. The trial on that date was continued at the instance of only the defendant Ozzie Negron. A new notice of trial, dated March 1, 1973, was again entered as to only the defendant Ozzie Negron. From the continuance of the trial on January 17, 1973 no setting of the case of the defendant Teresa Negron occurred until March 9, 1973 and that set the trial for April 9, 1973. Trial was not had on the date last aforesaid as the State sought and obtained a continuance. This resulted in a further entry on April 9, 1973 of a notice setting trial for May 3, 1973 for each of the defendants. From the continuance of January 17, 1973 until the trial was had on May 3, 1973, the defendant Teresa Negron neither sought nor obtained any continuance or delay.

On May 3, 1973, the date that trial finally began, Teresa moved for discharge pursuant to Rule 3.191, Cr.PR, on the ground that after the continuance of the January 17, 1973 trial date more than a reasonable time elapsed within which the State failed to set, or reset, her case for trial, relying upon State ex rel. Butler v. Cullen (Fla.1971), 253 So.2d 861. The motion for her discharge was denied; trial went forward and both petitioners were convicted of grand larceny. Ozzie was sentenced to five years and Teresa to two and one-half years in prison.

The District Court of Appeal, Fourth District, affirmed the convictions, per curiam without opinion.

It appears from the record that conflict of decisions exists as to the petitioner Teresa Negron upon the question whether she was entitled to a discharge because of denial to her of a speedy trial. Under the rationale of State ex rel. Butler v. Cullen, supra, we conclude from the record proper that her motion should have been granted. There was sufficient delay involved in the State's failure to proceed to trial after continuance was granted to it warranting the granting of her motion.

After the State's motion for continuance was granted and the case was re-set for trial, Teresa sought no delays of trial and made no motions for continuance or other dilatory motions. At all times she was ready and available for trial thereafter. Therefore, it is clear more than 100 days elapsed since the continuance of the January 17, 1973 trial date and Teresa's trial on May 3, 1973, and none of this lapsed time appears from the record attributable to Teresa.

It appears to us that the following language from State ex rel. Butler v. Cullen, supra, is applicable to Teresa's speedy trial situation:

'In other words, the purpose of the Speedy Trial rule is to implement the practice and procedure by which a defendant may seek and be guaranteed his speedy trial. When the time limitations set forth in the rule were waived by petitioners seeking a continuance, then it became incumbent upon the trial court to set a trial date far enough in advance to allow the petitioners adequate time for preparation of their defenses, but, also, guaranteeing to the petitioners their constitutional right to a speedy trial. The facts and circumstances of each case may differ.

'When the continuance was granted and the time limitations set forth in the rule were no longer applicable, the trial judge was nevertheless required to grant petitioners a speedy trial. In the absence of the time limitations specified in the Speedy Trial rule, the right to a speedy trial is necessarily relative. It is consistent with delays and the question of whether a trial date affords petitioners a speedy trial must be determined in the light of the circumstances of the particular case as a matter of judicial discretion. The mere lapse of time before trial is not the only factor to be considered under such circumstances. Any unreasonable delay arising from the negligence of the prosecution without fault or consent by the accused violates the guaranty of a speedy trial.'

We note that speedy trial Rule 3.191 which was quoted in State ex rel. Butler v. Cullen, supra, reads in part as follows:

'(d)(3). Continuances; Effect on Motion.--

'If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that (i) a time extension has been ordered as provided in § (d)(2), or (ii) the failure to hold trial is due to the unexcused actions or unexcused decisions of the accused, or of a coedefendant in the same trial. If a continuance or delay is attributable to the accused and is not excused, the pending motion for discharge shall on motion by the State be voidable by the court in the interests of justice; Provided, however, the trial shall be scheduled and commence within 90 days.' (Emphasis supplied.) In re Florida Rules of Criminal Procedure, 245 So.2d 33, 36 (Fla.1971).

It appears to us as a matter of law when the quoted portion of Rule 3.191 and Section 16, Article I, Declaration of Rights, State Constitution, are applied to the record proper situation above related that Teresa was entitled to a speedy trial discharge under the rationale of State ex rel. Butler v. Cullen.

Not only was there a delay of trial which was unreasonable under any meaningful application of Section 16, but in point of time the trial was not commenced under the rule within 90 days from the continuance of the January 17, 1973 trial date, although the case was re-set for trial with notice to Teresa at least two times thereafter. There is nothing in the record to indicate Teresa was not ready for trial, but none occurred. The record is completely devoid of any hint or showing of any kind that any trial delay was attributable to Teresa after January 17, 197o. The State secured a continuance thereafter, but Teresa did not.

The speedy trial situation is different as to Ozzie. He secured continuance of his trial set for February 23, 1973 and a new notice of trial dated March 1, 1973 was entered as to him and he was tried within 90 days thereafter on May 3, 1973. It does not appear he was entitled to speedy trial discharge.

After the conflict of decisions became apparent in Teresa's case, we were at liberty to consider the case as a whole, including the transcript.

We reviewed...