State ex rel. Johnson v. Edwards

• Decision Date: 10 February 1969
• Docket Number: No. 2347,2347
• Citation: 219 So.2d 450
• Parties: STATE of Florida ex rel. James A. JOHNSON, Petitioner, v. Honorable Warren H. EDWARDS, as Judge of the Criminal Court of Record, Orange County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 450

219 So.2d 450

STATE of Florida ex rel. James A. JOHNSON, Petitioner, v. Honorable Warren H. EDWARDS, as Judge of the Criminal Court of Record, Orange County, Florida, Respondent.

No. 2347.

District Court of Appeal of Florida, Fourth District.

Feb. 10, 1969.

Rehearing Denied March 18, 1969.

Harry M. Hobbs, of Hobbs, de laParte, Whigham & Gonzalez, Tampa, for petitioner.

Earl Faircloth, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for respondent.

CROSS, Judge.

This is an original proceeding instituted by the petitioner, State of Florida, ex rel. James A. Johnson, seeking a Writ of Mandamus directing the respondent, The Honorable Warren H. Edwards, as Judge of the Criminal Court of Record in and for Orange County, Florida, to dismiss a criminal prosecution charge of perjury against the petitioner, James A. Johnson, asserting as reason therefor that the petitioner had filed three written demands for trial during three consecutive terms of the court pursuant to Section 915.01(2), F.S. 1967, F.S.A.

Finding that the petitioner had made a prima facie case, we issued the alternate writ commanding the respondent to dismiss with prejudice the action described in the said petition, or in the alternative, to show cause before this court why a peremptory writ of mandamus should not issue. Following the issuance of the alternate writ, the respondent, The Honorable Warren H. Edwards, filed his response to order to show cause.

The matter is now before us for a peremptory writ.

On June 27, 1966, an information was filed in the Criminal Court of Record of Hillsborough County, Florida, charging the petitioner with the crime of perjury committed on June 20, 1966. The petitioner was released on bail.

On September 28, 1967, the petitioner filed demand for trial during the October 1967 term of the Hillsborough County Criminal Court. The October term for that court commenced October 2, 1967. The defendant was not tried during the October term.

On November 15, 1967, the petitioner filed a demand for trial during the November 1967 term of the Hillsborough County Criminal Court, which term started November 27, 1967. The defendant was not tried during the November term.

Thereafter, on January 18, 1968, the petitioner filed a demand for trial during the February 1968 term of the Hillsborough County Criminal Court, which term began February 5, 1968. The defendant was not tried during the February term. The record reveals that during the February term the petitioner filed the following motions for the court's determination. On February 6, 1968, the petitioner filed motion for change of venue with affidavits in support thereof. On February 14, 1968, the petitioner filed supplementary motion to dismiss and motion to strike. Defendant's motion for change of venue was granted February 23, 1968. On that same day, the court entered its order granting continuance, stating therein that counsel stipulated and agreed it would be necessary to continue the cause for the term in the event that defendant's motion for change of venue was granted and that the defendant would under these circumstances withdraw his last request for speedy trial without prejudice to his right to file another written request for trial at the next ensuing term in the Criminal Court of Record of Orange County, Florida.

On February 27, 1968, the defendant filed motion to amend the court's order granting continuance, asserting that a stipulation for continuance was not entered into by the defendant or his attorney, and that an offer to stipulate was made as follows: that the defendant having filed three successive demands for trial would agree to a trial during the March term of court in Orange County, but that since the defendant had filed three successive demands for trial the defendant by agreeing to a trial date during the March term of the Orange County Criminal Court would not waive any rights acquired under Section 915.01(2), F.S. 1967, F.S.A., and that if defendant was not tried during the March term as aforesaid, the defendant would be discharged. Defendant also asserted in his motion to amend the court's order granting continuance that the state attorney did not accept the stipulation alluded to before, but said that he did not believe the prior demands for trial had been properly filed. The record does not reveal what disposition, if any, the court made with reference to petitioner's motion to amend order granting continuance.

After the court granted defendant's motion for change of venue and the cause was transferred to the Criminal Court of Record of Orange County, Florida, the defendant on March 6, 1968, filed a demand for trial during the March 1968 term of the Criminal Court of Record of Orange County, Florida, which term started March 11, 1968. The defendant was not tried in the March term.

Thereafter on May 8, 1968, the petitioner filed motion to dismiss prosecution, alleging that after the perjury information was filed the defendant for three consecutive terms of the court filed demand for trial and that defendant was not brought to trial, and finally, that the defendant filed no pleading seeking a continuance, had not prevented the attendance of witnesses, and had complied with the requirements of Section 915.01(2), F.S. 1967, F.SA.

On July 23, 1968, The Honorable Warren H. Edwards, Judge of the Criminal Court of Record in and for Orange County, Florida, entered an order denying defendant's motion for dismissal of prosecution. The defendant thereafter commenced this proceeding for a writ of mandamus.

Since some amount of delay is...