State ex rel. Maines v. Baker, s. 41603

• Decision Date: 20 October 1971
• Docket Number: 41609,Nos. 41603,s. 41603
• Citation: 254 So.2d 207
• Parties: STATE of Florida ex rel. Lender Lee MAINES and Charlie B. Brown, Petitioners, v. The Honorable Paul BAKER, one of the Judges of the Criminal Court of Record, in and for Dade County, Florida, Respondent.
• Court: Florida Supreme Court

Page 207

254 So.2d 207

STATE of Florida ex rel. Lender Lee MAINES and Charlie B. Brown, Petitioners, v. The Honorable Paul BAKER, one of the Judges of the Criminal Court of Record, in and for Dade County, Florida, Respondent.

Nos. 41603, 41609.

Supreme Court of Florida.

Oct. 20, 1971.

Rehearing Denied Nov. 29, 1971.

Phillip A. Hubbart, Public Defender, for petitioners.

Alvin N. Weinstein, Miami, for respondent.

ADKINS, Justice.

This is an original proceeding in mandamus involving the constitutionality of Florida Rules of Criminal Procedure, Rule 3.191 (formerly Rule 1.191), commonly referred to as the Speedy Trial rule, reported in 245 So.2d 33.

Because of the public interest involved and the necessity of a speedy determination, this Court, in its discretion, has dispensed with oral argument. Florida Appellate Rules, Rule 3.10(e), 32 F.S.A.

Petitioners were arrested on December 20, 1970, prior to the effective date of this rule, incarcerated, and have remained in jail without bail.

An information charging petitioners with five counts of robbery and one count of contributing to the delinquency of a minor was filed on March 12, 1971, and the public defender was appointed to represent them. Petitioners were arraigned and entered a plea of not guilty on July 13, 1971.

On September 27, 1971, the last day on which petitioners could be tried under the Speedy Trial rule, a jury panel was sworn in the morning, at which time the Clerk of the Court propounded certain questions and the Court excused certain jurors from service. Neither the prosecuting attorney, petitioners nor petitioners' counsel were present during this proceeding. Subsequently, at 8:30 p.m., during the evening of September 27, 1971, jurors from this panel were called for the trial of petitioners. There was no further oath administered to the jury, but the voir dire examination for the selection of the trial jury proceeded until 11:15 p.m. that night. The panel was exhausted through the use of peremptory challenges and the case was recessed until the following morning.

On the following day, petitioners filed their motion for discharge pursuant to Florida Rules of Criminal Procedure, Rule 3.191. The motion was denied and the Criminal Court of Record held the rule to be unconstitutional. These proceedings resulted and petitioners seek an immediate discharge.

Fla.Const. art. V, § 3, F.S.A. provides:

'The practice and procedure in all courts shall be governed by rules adopted by the supreme court.'

The questioned rule merely provides the procedures through which the constitutional right to a speedy trial is enforced in this state, and, as such, is a proper exercise of the Court's constitutional power to promulgate rules of practice and procedure. See State v. Garcia, 229 So.2d 236, 238 (Fla.1969), where the Court discusses 'substantive law' and 'procedural law.' The rule does not violate the Constitution, but is in full accord with its provisions.

A question arises as to whether trial commenced on September 27, 1971, the last day for trial under the rule. The following provision in the rule seems clear:

'(a) (3). Commencement of Trial.--

A person shall be deemed to have been brought to trial if the trial commences within the time herein provided. The trial is deemed to have commenced when the trial jury panel is sworn for voir dire examination, or, upon waiver of a jury trial, when the trial proceedings begin before the judge.' In re Florida Rules of Criminal Procedure, 245 So.2d 33 (Fla.1971).

It is elementary that a trial jury panel is first sworn before...