Sherrod v. Franza, 80-2003

• Decision Date: 04 March 1981
• Docket Number: No. 80-2003,80-2003
• Citation: 396 So.2d 1136
• Parties: Tommy Lee SHERROD, Petitioner, v. The Honorable Arthur J. FRANZA, as Judge of the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 1136

396 So.2d 1136

Tommy Lee SHERROD, Petitioner, v. The Honorable Arthur J. FRANZA, as Judge of the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, Respondent.

No. 80-2003.

District Court of Appeal of Florida, Fourth District.

March 4, 1981.

Rehearing Denied May 6, 1981.

Alan H. Schreiber, Public Defender, Daniel L. Tedesco, Asst. Public Defender, and Peter Mineo, Jr., Certified Legal Intern, Fort Lauderdale, for petitioner.

Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for respondent.

HERSEY, Judge.

For two reasons we deny the petition for writ of prohibition. The first goes to the merits of petitioner's argument for issuance of the writ. The second is based upon policy considerations.

After two mistrials the trial court entered an order dismissing the charges against petitioner, Sherrod, with prejudice, cancelling his appearance bond. The state appealed and this Court reversed. State v. Sherrod, 383 So.2d 752 (Fla. 4th DCA 1980). The state made no effort to have the original order stayed pending appeal pursuant to Section 924.19 Florida Statutes (1979). The mandate from this Court, dated June 4, 1980, was lodged in the trial court on June 9, 1980. A new trial was set for July 23, 1980 and petitioner's counsel, the Public Defender's Office, was notified. Petitioner failed to appear for trial on that date. A no-bond capias was issued and the trial was rescheduled for September 2, 1980. Again petitioner failed to appear and again a no-bond capias was issued. The record shows that notice had also been sent to petitioner's last known address.

On October 20, 1980 petitioner filed a motion for discharge in reliance on subsection (g) of Rule 3.191, Florida Rules of Criminal Procedure, which requires that trial be accorded the accused within ninety days of receipt by the trial court of the mandate requiring a new trial.

The State's position was that petitioner's non-appearance on the respective trial dates constituted evidence that he had not been continuously available for trial. Petitioner took the position that there is initially a burden on the state to produce some evidence that the petitioner was not continuously available for trial before the burden shifts to petitioner to come forward with evidence of availability. Thigpen v. State, 350 So.2d 1078 (Fla. 4th DCA 1977). Further, petitioner argues that because he was neither in custody nor on bail or personal recognizance his failure to appear for trial after written notice constitutes no evidence of non-availability for trial State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978). The rule itself provides that there is no presumption that a defendant is unavailable for trial.

In response the state maintained that jurisdiction reattaches upon reversal of the order of discharge or dismissal, so that non-appearance after written notice should constitute sufficient evidence of non-availability to at least shift the burden to petitioner to show continuous availability.

Petitioner relies on State v. Lampley, 271 So.2d 783 (Fla. 3d DCA 1978) for the proposition that failure of the state to seek an order staying the operation of the order of dismissal effectively terminates the court's control over the petitioner so that written notice is no longer sufficient to require petitioner either to appear or to have his non-appearance accepted by the court as sufficient evidence of his non-availability for trial to shift the burden of going forward with the evidence (on the issue of continuous availability) back to petitioner.

The trial court denied the motion for discharge and these proceedings in prohibition resulted.

We find that neither Thigpen v. State, supra, nor State ex rel. Smith v. Nesbitt, supra, nor State v. Lampley, supra, is controlling here.

The court, in Thigpen, stated the pertinent facts to be:

(1) The alleged murder occurred on May 31, 1974 in Orlando. The Defendant was first arrested on June 14, 1974 by Orlando police on a charge of first degree murder. On June 21, 1974 the Grand Jury returned a No True Bill and the Defendant was released. On August 6, 1974 he was indicted on a charge of second degree murder. He was arrested in Miami on February 6, 1975 and filed his Motion for Discharge on April 7, 1975. It is clear that the Defendant's 180-day speedy trial time period began to run on June 14, 1974 when he was first taken into custody. Id. at 1079.

The evidence was that defendant had given an Alabama address on the Sheriff's Department Booking Report. Accordingly, the capias was sent to a Sheriff's office in Alabama. There was neither a response nor any follow-up. The court, discussing the positive evidence of other possible leads to the whereabouts of the defendant, determined that while the state is not required "to make exhaustive efforts to locate an accused in order to establish some evidence of non-availability ... something more than just sending a warrant to out-of-state authorities ..." will be required.

There are at least two important points of departure between Thigpen and petitioner Sherrod's case. In Thigpen the Grand Jury returned a No True Bill and the defendant was released. There was no lingering residual jurisdiction. The charges were born again by indictment. Petitioner, on the other hand, was involved in a jury trial which resulted in an order from which an appeal was taken. His counsel participated in that appeal. Petitioner was constantly under the jurisdiction of the trial court until that jurisdiction was shifted to this court by virtue of the timely appeal and then back to the trial court by the mandate. At all times notice to his counsel was the equivalent of notice to him. State v. Grooms, 389 So.2d 313 (Fla. 2d DCA 1980). In addition, the record shows that no bond capiases were requested on both prospective trial dates. This is some evidence that the State made a good faith attempt to bring petitioner physically before the trial court. In summary the cases differ in that (1) petitioner was bound to know that an appeal was possible so that jurisdiction over him might continue despite the erroneous discharge, which in fact did happen; and (2) petitioner was continuously represented by the Public Defender's Office as counsel to which good and sufficient notice was given.

State ex rel. Smith v. Nesbitt, supra, involved criminal charges lodged in two entirely separate and distinct courts. Defendant had been charged with both felony crimes and misdemeanors. He was arrested and released on bail. A committing magistrate subsequently reduced the felony charges to misdemeanors and allowed the defendant to remain free on bail. The defendant was bound over for trial in the County Court of Dade County. The State then filed an Information in the circuit court reinstating the felony charges. Written notice of the arraignment to be conducted on these charges in the circuit court was mailed to the defendant's last known address. He did not appear for arraignment. At the expiration of the speedy trial time and subsequent to his arrest he filed a motion for discharge which was denied. The appellate court simply held that written notice was insufficient where the defendant was not in custody or free on bond or personal recognizance "before the court where the charges are pending." The obvious distinction between that case and this is that the circuit court never obtained jurisdiction over the defendant. Under such circumstances written notice is clearly insufficient and the district court so held.

The Lampley case simply held that it was error to order forfeiture of a bail bond where the state failed to apply for a stay of an order dismissing an Information. This issue, while perhaps analogous to the questions of notice and jurisdiction, is clearly distinguishable and certainly not controlling on the question of notice involved in the instant case.

In summary, I would deny the petition on the merits for the foregoing reasons.

There is still another and more persuasive basis for denial of the writ here. It is becoming increasingly clear that the use of prohibition in the area of speedy trial violations is becoming an abuse of the writ.

The right to a speedy trial is a fundamental right guaranteed by the Bill of Rights. U.S.Const. amend. VI.

It finds its counterpart in Article I, Section 16 of the Florida Constitution.

The right to speedy trial is codified in Section 918.015, Florida Statutes (1979).

And finally, exercise of the right and its parameters are detailed in Rule 3.191 of the Florida Rules of Criminal Procedure.

Basically, one charged with a felony is entitled to be tried within 180 days after being taken into...