State ex rel. Mitchell v. Beverly, HH-153

• Decision Date: 18 November 1977
• Docket Number: No. HH-153,HH-153
• Citation: 352 So.2d 535
• Parties: The STATE of Florida ex rel. Christine MITCHELL, Relator, v. Virginia Q. BEVERLY, as Judge of the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 535

352 So.2d 535

The STATE of Florida ex rel. Christine MITCHELL, Relator, v. Virginia Q. BEVERLY, as Judge of the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Respondent.

No. HH-153.

District Court of Appeal of Florida, First District.

Nov. 18, 1977.

Rehearing Denied Dec. 22, 1977.

Robert W. Elrod, Jacksonville, for relator.

No appearance for respondent.

Robert L. Shevin, Atty. Gen., Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for State of Florida, real party respondent in interest.

SMITH, Judge.

Relator's suggestion for writ of prohibition questions whether the 90-day retrial period prescribed by Fla.R.Cr.P. 3.191(g), following our reversal of relator's prior conviction, Mitchell v. State, 333 So.2d 89 (Fla. 1st DCA 1976), began to run upon the trial court's receipt of our mandate for new trial or, as the State contends, did not begin until the Supreme Court denied rehearing on its decision discharging a writ of certiorari issued on the State's petition. 347 So.2d 610 (Fla.1977). Because the effect of our mandate was not stayed automatically by the State's filing a petition for writ of certiorari within 15 days from the date of our decision, Fla.App.R. 4.5c(6), we agree with relator that the ten days that elapsed between the trial court's receipt of our mandate and the entry of the Supreme Court's order staying further proceedings should be tacked to the 84 days that later elapsed between the Supreme Court's denial of rehearing and relator's motion for discharge. Thus, more than 90 days elapsed before relator's retrial and she must be discharged.

Criminal Rule 3.191(g) provides in part:

A person who is to be tried again shall be brought to trial within 90 days from . . . the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant . . . .

There is no doubt that a new trial pursuant to our mandate was impossible during the period the Supreme Court, on the State's motion, ordered proceedings stayed pending its consideration of the State's petition for certiorari. Had the State filed its petition for certiorari within 15 days after our decision on the appeal, our mandate would not have issued but would have been stayed pending disposition of the certiorari petition. Fla.App.R. 315a, 4.5c(6). But the State did not file its certiorari petition within 15 days and our mandate was issued as a matter of course. Therefore, unless and until the Supreme Court on special motion granted a stay, our mandate "(made) possible a new trial for the defendant," as contemplated by the speedy trial rule. To discount the period that our mandate was outstanding because of the Supreme Court's later stay order would dilute the effect of our mandate and subject the accused to delay of an uncertain period, depending on when the State applied for a stay and when the Supreme Court acted on the application. That we feel, is contrary to the letter and spirit of Rule 3.191(g). See State v. Williams, 344 So.2d 311 (Fla. 2d DCA 1977), approved, 350 So.2d 81 (Fla.1977). Contrast State v. Sampson, 317 So.2d 782 (Fla. 3d DCA 1975).

We recognize that the issuance of our mandate on a criminal appeal may have an uncertain effect...