State v. Earnest, Q--230

• Decision Date: 25 July 1972
• Docket Number: No. Q--230,Q--230
• Citation: 265 So.2d 397
• Parties: STATE of Florida, Appellant, v. Homer Ronald EARNEST, Appellee.
• Court: Florida District Court of Appeals

Page 397

265 So.2d 397

STATE of Florida, Appellant, v. Homer Ronald EARNEST, Appellee.

No. Q--230.

District Court of Appeal of Florida, First District.

July 25, 1972.

Rehearing Denied Aug. 29, 1972.

Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellant.

Hamilton D. Upchurch, of Upchurch & Upchurch, St. Augustine, for appellee.

WIGGINTON, Judge.

This appeal by the State of Florida questions the correctness of a final judgment rendered by the trial court discharging defendant-appellee and dismissing the case pending against him on the ground that he was not afforded a speedy trial in accordance with the requirements of law.

The motion for discharge filed by appellee herein was upon the sole ground that the State of Florida had failed to afford him a trial within 180 days from the filing of the information against him. In the judgment discharging appellee and dismissing the cause the trial court found and so recited that although appellee's privately employed attorney had orally agreed with the State of Florida to delay the trial of the cause to a date beyond the 180-day limitation contained in the speedy trial rule, such agreement by counsel was without the knowledge of appellee and without being fully advised of his rights to a speedy trial. The court thereupon concluded that the oral agreement for delay of the trial entered into between appellee's attorney and the State of Florida was not binding on appellee and therefore ordered that he be discharged and the case dismissed.

The sole question presented for our determination is whether an attorney representing a defendant charged with a crime may effectively waive the defendant's right to be tried within the time limitations set forth in the speedy trial rule without first having explained to defendant his rights under the provisions of the rule and securing his consent to enter into such an agreement.

Rule 3.191(d)(2), R.Cr.P., 33 F.S.A., which specifies the conditions under which the time for placing on trial a defendant charged with a crime may be extended is as follows:

'The periods of time established by this Rule for trial may at any time be waived or extended by order of the court (i) upon stipulation, signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, provided the period of time sought to be extended has not expired at the time of signing, or (ii) on the court's own motion or motion by either party in exceptional circumstances as hereafter defined, or (iii) with good cause shown by the accused upon waiver by him or on his behalf, or (iv) a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pretrial motions, for interlocutory appeals, and for trial of other pending criminal charges against the accused. For the purposes of this Rule, any other delay shall be unexcused.'

From the record it affirmatively appears that the requirements of the foregoing provisions of the rule were not strictly complied with in the case sub judice because the stipulation between defendant's counsel and the prosecuting attorney was not reduced to writing and signed by them, nor was the agreement made in open court and made a part of the record. ¹ No written motion for an extension of time for trial was made by defendant or his attorney, nor did defendant or his attorney sign a written waiver of his right to a speedy trial. Furthermore, no order was entered by the court extending the time of trial beyond the 180-day time limitation in accordance with the agreement of the attorneys.

The agreement with which we are here concerned was an oral out-of-court informal understanding between defendant's counsel and the state attorney that the setting of a trial date in this case would be deferred until after an interlocutory appeal in a companion case involving a controlling question of law raised by defendant herein was decided by the appellate court in which the appeal was then pending. We are therefore faced with the question of whether, irrespective of noncompliance with the foregoing provisions of the speedy trial rule, defendant effectively waived his right to be tried within the time limitations of the rule because of the agreement entered into between his attorney and the State, even though the agreement was made without defendant's knowledge, consent, or understanding of his lawful rights.

In State ex rel. Leon v. Baker ² the Third District Court of Appeal held that acquiescence by defendant to the postponement or continuance of his trial beyond the time limited by the statute granting him the right to a speedy trial will constitute a waiver of his rights under the statute. In this decision the court cited with approval the case of State v. Holloway ³ decided by the Supreme Court of Connecticut in which it was held that a defendant's right to a speedy trial under the constitution and applicable statutes of the state may be waived where he consents to delay or both prosecution and defense agree upon or stipulate for postponement. In the Baker case the court also cited with approval the decision rendered in Ramsdell v. Langlois ⁴ in which it was held by the Supreme Court of Rhode Island that defendant's right to a speedy trial was waived by silently sitting by and interposing no objection to an announcement by the court that the trial of his case was being continued to a future date beyond the time limited for affording him a speedy trial.

The principles established by the foregoing decisions by courts of last resort conform to the general rule governing waiver of a defendant's right to a speedy trial. It is uniformly held that such a right is a personal one which may be waived by the act or conduct of a defendant or his attorney. It appears to be the accepted law that waiver of a defendant's right to a speedy trial will result where both his attorney and the...