Schuty v. State, R--1

• Decision Date: 23 August 1973
• Docket Number: No. R--1,R--1
• Citation: 281 So.2d 507
• Parties: Leo Charles SCHUTY a/k/a Leo Welch, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 507

281 So.2d 507

Leo Charles SCHUTY a/k/a Leo Welch, Appellant, v. STATE of Florida, Appellee.

No. R--1.

District Court of Appeal of Florida, First District.

Aug. 23, 1973.

Joseph A. St. Ana, Jacksonville, for appellant.

Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.

WIGGINTON, Acting Chief Judge.

Defendant has appealed an order denying his motion for discharge predicated upon the ground that he has been denied a speedy trial as provided by Rule 3.191, Rules of Criminal Procedure, 33 F.S.A. Since an appeal from this type of order is not authorized, we treat the notice of appeal as a suggestion for writ of prohibition and proceed to dispose of the case on that basis.

Appellant and two codefendants were charged by information filed in the Criminal Court of Record of Duval County with numerous offenses including receiving stolen property and breaking and entering with intent to commit grand and petit larceny. During pretrial proceedings the court, on motion of the defendants, ordered the State to divulge the name of the confidential informer whose information formed the basis for probable cause on which the search warrant in the case issued. Because of the refusal by the State to comply with this order, an order was rendered by the court dismissing the information and discharging the defendants. From this order of dismissal the State appealed to this court pursuant to the applicable provisions of law. ¹ Upon review, this court reversed the trial court's order of dismissal and remanded the case for further proceedings. ² The court's mandate on that appeal issued on June 30, 1970. It is noted that appellant was actively represented by privately employed counsel at all stages of the proceeding prior to, during, and subsequent to the appeal in this court.

The record reveals that following the going down of this court's mandate no further steps in the prosecution of this case were taken by the state attorney during the next ensuing 15 months, as a result of which appellant filed in the cause on September 27, 1971, a motion for discharge on the ground that the State had failed to afford him a speedy trial in accordance with the requirements of Rule 3.191, Rules of Criminal Procedure. No demand for a speedy trial had theretofore been made by appellant. After several adjournments a hearing on the motion was held by the court on November 30, 1971, resulting in an order denying appellant's motion for discharge, which order was not rendered by filing with the clerk for recording until February 10, 1972. The order of denial recited as grounds in support thereof that appellant Schuty was at large and had never appeared in that court to present himself for trial.

The record reflects that appellant posted an appearance bond and had been released on bail following his arrest and prior to the dismissal of the information against him by the trial court in 1969. It is appellant's position that upon the going down of this court's mandate on June 30, 1970, he continued in the constructive custody of the court and was at all times thereafter available for trial and actively represented by privately employed counsel in defense of the reinstated charges pending against him. No action looking to the estreature of his bond was ever initiated insofar as is disclosed by the record before us. Although a capias for appellant's arrest appears to have been issued following reversal of the order of dismissal, no attempt to rearrest him or inquire as to his whereabouts from his counsel of record was ever made.

Appellant relies on that provision of the speedy trial rule adopted by the Supreme Court on February 24, 1971, and amended effective August 19, 1971, which provides in the Schedule forming a part thereof that:

'The trial of all persons taken into custody prior to the effective date of this rule shall commence on or before September 27, 1971, unless a written demand for speedy trial is made. . . . If a person is released upon bail or otherwise, and makes no demand for speedy trial, the trial of such person shall commence on or before November 1, 1971.' ³

Appellant urges that since he was in the constructive custody of the court at the time of the adoption of the foregoing provision of the speedy trial rule, it was incumbent upon the State to place him on trial on or before November 1, 1971. It is his position that by denying the motion for discharge filed by him on September 27, 1971, the trial court erred and should now be prohibited from proceeding further with the prosecution against him.

In reply the State contends that the appearance bond posted by appellant in the trial court was exonerated and cancelled by operation of law at the time the trial court dismissed the information and discharged appellant therefrom on July 1, 1969. ⁴ The State argues that all times thereafter defendant was free from State custody and remained at large down to and including November 30, 1971, when the order denying his motion for discharge was entered by the trial court. The State therefore concludes that since appellant was neither in custody nor released upon bail or otherwise at the time he filed his motion for discharge on September 27, 1971, he was not available for trial and therefore was not entitled to the benefits of the speedy trial rule.

The applicable law specifically provides that an appeal by the State shall not stay the operation of an order in favor of the defendant except as provided in F.S., Section 924.071(2), F.S.A., or when the appeal is from an order granting a new trial. Since the order dismissing the information rendered by the trial court in the case sub judice does not fall within either of the categories of orders specified in the foregoing statute, the appeal by the State did not operate as a stay or supersedeas. Whether the order of dismissal operated to...