Smith v. Colman, 75--4215
| Decision Date | 22 March 1976 |
| Docket Number | No. 75--4215,75--4215 |
| Citation | 528 F.2d 1362 |
| Parties | Matthew SMITH, Petitioner-Appellant, v. Melvin COLMAN, Sheriff, Respondent-Appellee. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph E. Neduchal, Robert D. Melton & Assoc., P.A., H. James Brett, Orlando, Fla., for petitioner-appellant.
Rom W. Powell, Asst. State Atty., Robert Eagan, State Atty., Orlando, Fla., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before COLEMAN, GOLDBERG and GEE, Circuit Judges.
The only issue presented in this appeal from the denial of habeas corpus is whether the appellant was denied his right to a speedy trial. Finding no merit to this contention, we affirm.
On June 18, 1970, appellant, Matthew Smith, was arrested pursuant to an information charging him with the offense of being a felon in possession of a firearm in violation of § 790.23, Florida Statutes (1969). On July 24, 1970, appellant filed a motion to dismiss based on the ground that the state statute under which he had been charged was unconstitutionally vague. The trial court upheld appellant's motion to dismiss and the State of Florida timely appealed on October 19, 1970.
While the State's appeal was pending, the Florida Supreme Court adopted a rule of procedure designed to establish time limits within which a person charged with a crime is to be brought to trial, Rule 3.191, Fla.R.Cr.P.; see In Re Rules of Criminal Procedure, Fla.1971, 245 So.2d 33. The rule was subsequently amended to require that persons like the appellant, who had been arrested prior to the adoption of the rule, be brought to trial prior to November 1, 1971. The State sought no continuance or extension of time within which to try the appellant. On November 30, 1971, while the State's appeal was still pending, the appellant filed a motion for discharge on the ground that he had been denied a speedy trial in violation of the new Florida Speedy Trial Rule. No order was ever entered on this motion, but the appellant was not discharged.
On December 15, 1971, the Florida Supreme Court reversed the trial court's decision and upheld the constitutionality of the felony firearm statute. The Supreme Court's mandate came down to the trial court on March 12, 1972. Appellant was then tried and convicted by a jury on June 27, 1972, and sentenced to a prison term of fifteen years. Appellant subsequently exhausted all available state remedies and filed a petition of habeas corpus with the federal district court alleging that he was denied his right to a speedy trial. The District Court after a full evidentiary hearing denied appellant's petition.
The appellant expends most of his energy arguing that the state violated its own speedy trial rule and that ipso facto, the appellant was prejudiced. The appellant misapprehends the function of habeas corpus and the type of prejudice that must be shown. Federal habeas corpus is available for the vindication of rights existing under federal constitutional law, not rights existing solely under state rules of procedure, Woodard v. Beto, 5 Cir., 1971, 447 F.2d 103, 105, cert. denied, 404 U.S. 957, 92 S.Ct. 325, 30 L.Ed.2d 275; Cappetta v. Wainwright, 5 Cir., 1970, 433 F.2d 1027; Pringle v. Beto, 5 Cir., 1970, 424 F.2d 515; Bilton v. Beto, 5 Cir., 1968, 403 F.2d 664; Beto v. Sykes, 5 Cir., 1966, 360 F.2d 411.
In order to gain release by habeas corpus the appellant must demonstrate a violation of his Sixth Amendment right to a speedy trial. The four factors set out by the Supreme Court in Barker v. Wingo, 1972, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116, as appropriate for consideration in determining when a defendant was denied a speedy trial are: (1) the length of the delay, (2) reason for delay, (3) defendant's assertion of his right to a speedy trial, and (4) prejudice resulting from the delay in bringing the defendant to trial, Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2191, 33 L.Ed.2d at 116; Gravitt v. United States, 5 Cir., 1975,523 F.2d 1211, 1216; Turner v. Estelle, 5 Cir., 1975, 515 F.2d 853, 856.
The length of delay between appellant's arrest and his trial amounted to twenty-six and one-half months. The reason for the delay was entirely occasioned by ...
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State v. Howell
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