State v. Bivona
| Decision Date | 16 October 1986 |
| Docket Number | No. 66435,66435 |
| Citation | 11 Fla. L. Weekly 527,496 So.2d 130 |
| Parties | 11 Fla. L. Weekly 527 STATE of Florida, Petitioner, v. Stephen BIVONA, Jr., Respondent. |
| Court | Florida Supreme Court |
Jim Smith, Atty. Gen., and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for petitioner.
Robert D. Jones of Fuchs and Jones, Royal Palm Beach, for respondent.
The decision of the district court in this case, State v. Bivona, 460 So.2d 469 (Fla. 4th DCA 1984), directly and expressly conflicts with a decision of another district court, Hawkins v. State, 451 So.2d 903 (Fla. 1st DCA), review denied, 459 So.2d 1040 (Fla.1984). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
Bivona robbed a West Palm Beach bank and shortly thereafter went to California. June 29, 1983, he was arrested in Bakersfield for shoplifting a bicycle and assaulting the security officer who stopped him. While being processed on the charges, he told police he was wanted in Florida for the bank robbery. Florida authorities had issued no warrant for Bivona, but, based on Bivona's statements to Bakersfield police, the state attorney in Palm Beach County filed an information against him and asked California authorities to "hold" Bivona for return to Florida. Bivona did not fight extradition. He was incarcerated in California until August 4, 1983, when he was returned to Florida. There is no explanation in the record for the delay between arrest and return to the state. Nor is there an indication of the disposition of the California charges for which he was originally arrested. Florida court records show Bivona's "arrest date" as August 4, and a "speedy trial deadline date" of January 31, 1984.
January 3, 1984, Bivona's counsel filed a motion for discharge pursuant to Florida Rule of Criminal Procedure 3.191(a)(1), claiming the 180-day period in which the state is obligated to bring the defendant to trial began June 29, 1983, when Bivona was arrested in California. After a hearing, the trial judge discharged the defendant. In his order, the judge noted that: "More than merely detaining or holding the Defendant for Palm Beach County, the Bakersfield police actively investigated the instant offense"; "the Defendant was released on the [California] charges and kept in custody on the facts that give rise to these charges"; and recusal of the trial judge the day Bivona had originally been scheduled for trial did not toll the speedy trial time. 1
On appeal to the Fourth District Court of Appeal, the court ruled that speedy trial time begins to run for a defendant held in custody solely on Florida charges at the time of his out-of-state arrest, rejecting the opposite conclusion reached by the First District in Hawkins. We agree with the position of the First District and quash the decision of the Fourth District sub judice.
The question before us is whether speedy trial time begins to run when a defendant is incarcerated out of state solely on Florida charges. Resolution of the issue lies in interpretation of several subsections of rule 3.191. The Fourth District discussion of the rule and argument follows:
Bivona contends that he was held by the California authorities from June 29, 1983, solely as a result of the Florida criminal charges, and that this holding on a Florida detainer constituted a "taking into custody" within the context of Rules 3.191(a)(1) and (a)(4), Florida Rules of Criminal Procedure, which provide, in relevant part:
Rule 3.191. Speedy Trial
(a)(1). Speedy Trial Without Demand. Except as otherwise provided by this Rule, and subject to the limitations imposed under (b)(1) and (b)(2), every person charged with a crime by indictment or information shall without demand be brought to trial ... within 180 days if the crime charged be a felony, and if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion, shall make the required inquiry under (d)(3). The time periods established by this section shall commence when such person is taken into custody as defined under (a)(4)....
(a)(4). Custody. For purposes of this Rule, a person is taken into custody, (i) when the person is arrested as a result of the conduct or criminal episode which gave rise to the crime charged, or (ii) when the person is served with a notice to appear in lieu of physical arrest.
The State argues that Rule 3.191(b)(1) should apply instead:
(b)(1). Prisoners Outside Jurisdiction. A person who is in federal custody or incarcerated in a jail or correctional institution outside the jurisdiction of this State or a subdivision thereof, [and] who is charged with a crime by indictment or information issued or filed under the laws of this State, is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending and until written notice of this fact is filed with the court and served upon the prosecutor.
To support its position, the State calls our attention to the case of Hawkins v. State, 451 So.2d 903 (Fla. 1st DCA 1984), which has interpreted Florida Rule of Criminal Procedure 3.191(b)(1), supra, to apply to fugitives who are being held in another jurisdiction solely on the basis of the charges pending in this State. We cannot agree with the majority opinion in Hawkins, and agree rather with the dissent of Chief Judge Ervin in that case as the better-reasoned view.
We suggest that the facts of this case establish the danger of interpreting Rule 3.191(b)(1) as the majority does in Hawkins, rather than as Chief Judge Ervin interprets that rule in his dissent and as we interpret that rule now. Unlike the situation in Hawkins, where apparently the defendant deliberately made himself unavailable for trial during a portion of the 180-day period of time, Bivona cooperated fully with the arresting authorities. He awaited extradition, and did nothing to thwart the State's efforts to bring him to Florida to face the charges against him. Yet he was incarcerated in California for 34 days waiting for the Florida authorities to extradite. Under the Hawkins majority view, the Florida authorities could perhaps have left him there for 60, 90, or even 360 days without a trial. This hardly seems to comport with the intention of the speedy trial rule. When Rule 3.191 is read as a whole, it appears clear that subsection (b)(1), supra, must be interpreted to apply when a defendant is incarcerated in jails outside the jurisdiction of this state on charges pending in the other state. Otherwise, the provisions of subsection (a)(4) of Rule 3.191 become totally meaningless.
Bivona, 460 So.2d at 470-71. The district court's concern for the viability of subsection (a)(4) elevates a general provision of the rule above the specific provision of (b)(1).
The language of (b)(1) is without ambiguity. One who is "incarcerated [outside Florida], and who is charged with a crime by indictment or information issued or filed under the laws of this State, is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending and until written notice of this fact is filed with the court and served upon the prosecutor." "Incarceration" is "[i]mprisonment; confinement in a jail or penitentiary." Black's Law Dictionary 685 (5th ed. 1979). The word "incarcerated" in the rule is unqualified, not restricted in meaning to confinement upon conviction or to confinement for charges in the jurisdiction in which the confinement occurs. Clearer language than this is difficult to envisage. Yet the lower court puts a gloss on it, unwarranted by anything that appears in rule 3.191, by reading into subsection (b)(1) that incarceration outside Florida be on charges pending in the other state before (b)(1) comes into play.
The history of the immediate predecessor to subsection (b)(1) is enlightening. Prior to amendment in 1980, the subsection was designated 3.191(b)(3). Subsection (b)(3) entitled one "imprisoned upon conviction of a crime" outside the state to the right to demand a speedy trial. The old subsection did not provide for application of the rule to any other out-of-state prisoners. Subsections (b)(1) and (b)(2) of the pre-amendment rule provided for speedy trial without or with demand, respectively, for prisoners in Florida. Reading these three subsections in pari materia, it is clear that persons incarcerated outside Florida but not entitled to demand speedy trial under subsection (b)(3) could not avail themselves of the rule in any manner. In revising the rule, the 1980 amendment inserted express...
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