State v. Collie

• Decision Date: 19 November 1980
• Docket Number: No. 79-43,79-43
• Citation: 390 So.2d 441
• Parties: STATE of Florida, Appellant, v. Alexis Jeiselle COLLIE, Appellee.
• Court: Florida District Court of Appeals

Page 441

390 So.2d 441

STATE of Florida, Appellant, v. Alexis Jeiselle COLLIE, Appellee.

No. 79-43.

District Court of Appeal of Florida, Fifth District.

Nov. 19, 1980.

Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Daytona Beach, for appellant.

James B. Gibson, Public Defender, Ronald K. Zimmet, Chief, Appellate Division, Asst. Public Defender, and Carla Miller, Certified Legal Intern, Daytona Beach, for appellee.

SHARP, Judge.

The state argues that Collie, the defendant, should not have been discharged by the trial court under Florida's "speedy trial" rule, ¹ because a notice of Collie's arraignment date was sent to her bondsman, although no one sent it to her, and she failed to appear at her arraignment. We affirm the discharge.

A summary of the events leading to Collie's discharge are as follows:

                January 10, 1979  - Defendant arrested for grand theft
                January 11, 1979  - Defendant bonded by Earl W. Houk Bonding Agency, through
                                    Curtis Ward, an associate
                March 30, 1979    - Information filed charging defendant with grand theft
                April 3, 1979     - Court clerk sent notice of arraignment to bonding agency
                                    agency failed to notify defendant.
                April 17, 1979    - Arraignment date; defendant failed to appear; capias
                                    issued.
                May 1, 1979       - Ed Houck arrested defendant and placed her in custody.
                May 24, 1979      - Arraignment; defendant appeared.
                May 25, 1979      - Defendant filed discovery motions.
                June 29, 1979     - State replied to discovery motions.
                July 9, 1979      - Speedy trial time (180 days) ran out.
                July 19, 1979     - Defendant filed motion for discharge.
                

At the hearing on the defendant's motion for discharge, the state argued the speedy trial rule should be tolled because the defendant failed to appear at the April 17, 1979 arraignment. Collie testified she resided continuously for many years with her parents and children at the same address given to the police and bondsmen. She failed to appear at her April 17 arraignment because no one (neither the state nor her bondsman) sent her notice or told her of the date. Houk's associate, Ward, lost his license and his absence apparently caused the agency's failure to notify Collie. Collie, however, did not know about Ward's problems at that time. The court records indicate the clerk notified only the bondsman of the arraignment date. The court found that the defendant did not receive notice of the arraignment date and she was continuously available for trial during the 180 day period following her arrest.

The issue in this case is whether Collie is chargeable with "constructive" notice of the arraignment given to her bondsman, and thus willfully "not available for trial" within the meaning of the "speedy trial" rule. ² No Florida cases answer this question. Smith v. Nesbitt, 355 So.2d 202 (Fla.3d DCA 1978) states (by way of dictum ) that failure of a defendant (free on bond) to appear at his arraignment is "evidence" of his "non-availability for trial" under Florida Rule of Criminal Procedure 3.191(e). Upon the state's making such a showing, the defendant must then counter with proof that he was "continuously available." Nesbitt did not consider what would constitute such a showing. Similarly in Dara v. State, 278 So.2d 334 (Fla.3d DCA 1973), when the state objected to discharge because the defendant failed to appear at his arraignment, the defendant produced no proof of any kind regarding his "continuous availability" for trial.

In some contexts, courts hold that notice to a bonding company or surety is notice to the defendant. State v. United Bonding Ins. Co., 81 N.M. 154, 464 P.2d 884, 886 (1970); 10 Appleman, Insurance Law & Practice § 6092 (1943 & Supp.1980). But these cases involve proceedings to forfeit a bond upon failure of the surety to bring the defendant before the court in compliance with its bonded undertaking to do so. The courts allow bonding companies few excuses for not producing the defendant: acts of God; acts of the obligee; or acts of war. State v. United Bonding Ins. Co., 464 P.2d at 887. The "constructive notice" fiction is a tool in the court's armory to hold sureties strictly liable.

The purpose and policies of Florida's "speedy trial" rule are so different than those involved in bond forfeiture cases, we cannot justify the application of the "constructive notice" rule in this context. The speedy trial rule is our Supreme Court's effort to clarify and implement a defendant's constitutional right to a speedy trial. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). The "right" belongs to the defendant, and the state has the "duty" to bring him to trial within the 180 day period.

A waiver of this right should not be based on a legal "fiction" such as "constructive notice" of an arraignment date. Nothing less than the defendant's actual knowledge of the date and willful failure to appear, or intentional avoidance or evasion of receiving notice, ³ which were not shown in this case, should be sufficient to waive a defendant's speedy trial right. ⁴

We agree with the trial judge's views expressed at the hearing:

I think the state has to be treated fairly, but the accused certainly has to be treated fairly too. And I consider it a miscarriage of justice when proper notice is not sent to an accused, to give them an opportunity to make themselves available to the Court.

Because the defendant made a sufficient showing of being "continuously available" for trial under Florida Rule of Criminal Procedure 3.191(e), even though she did not appear at her arraignment, her discharge is affirmed.

AFFIRMED.

COWART, J., concurs.

COBB, J., dissents with opinion.

COBB, Judge, dissenting.

The defendant was arrested on January 10, 1979, on a charge of grand theft. She was bonded out the next day by a surety Earl W. Houk Bonding. Houk's associate handling the defendant's file, Curtis Ward, then lost his license and failed to notify the defendant of her arraignment on April 17, 1979. The defendant did not appear, and a capias issued, resulting in her arrest. Notice of the arraignment apparently had been sent by the clerk of the court to the bondsman, but no notice was sent directly by the clerk to the defendant, whose address remained the same throughout this period of time. The defendant was not taken to trial within the 180-day speedy trial period, and the trial court granted her motion for discharge on the basis that the state failed to present sufficient evidence of non-availability pursuant to Rule 3.191(e), Florida Rules of Criminal Procedure.

At the hearing on the motion for discharge, the defendant Collie testified that she failed to appear at arraignment as scheduled because her bonding agent's license was revoked and she did not receive notice from him. There was no evidence before the trial court that it had been brought to the attention of the court or its clerk, prior to the scheduled arraignment, that the license of the agent had been revoked. Had this fact been brought to the attention of the court, the defendant would have been subject to commitment at that point. Rule 3.130(h)(2), Fla.R.Crim.P. The essential question raised by the state's appeal is whether dual notice to the defendant and to the bondsman is required. It is my view that the answer is no.

When a defendant is released on bail, he is placed in the custody of the bondsman. 10 Appleman Insurance Law &...