State v. Frazee, 91-2765

• Decision Date: 14 April 1993
• Docket Number: No. 91-2765,91-2765
• Citation: 617 So.2d 350
• Parties: 18 Fla. L. Week. D970 STATE of Florida, Petitioner, v. Douglas Paul FRAZEE, Respondent.
• Court: Florida District Court of Appeals

Page 350

617 So.2d 350

18 Fla. L. Week. D970

STATE of Florida, Petitioner, v. Douglas Paul FRAZEE, Respondent.

No. 91-2765.

District Court of Appeal of Florida Fourth District.

April 14, 1993.

Robert A. Butterworth, Atty. Gen., Tallahassee, and James J. Carney, Asst. Atty. Gen., West Palm Beach, for petitioner.

C. Edward McGee, Jr., Dykema Gossett, Fort Lauderdale, for respondent.

DOWNEY, JAMES C., Senior Judge.

The State of Florida has perfected this appeal to review the issuance of a writ of prohibition by the circuit court directed to the county court wherein that court had denied Douglas Paul Frazee's motion for discharge under the speedy trial rule. We believe this matter is properly reviewed by this court under Florida Rule of Appellate Procedure 9.030(b)(2)(B) and thus we treat it as a petition for writ of certiorari.

Frazee was charged in the county court with driving while under the influence and his trial was ultimately set for April 28, 1987, which was two days before the speedy trial time expired. On the trial date Frazee's counsel appeared before the county judge and advised him that he was ready for trial but that he could not appear for trial because he was involved in a trial before another judge and would not conclude in time to commence trial in the present case. The trial judge then announced that he would continue the case until a later date and charge the continuance to Frazee. Counsel advised he was not requesting a continuance and did not want it charged to his client because he was precluded from being present by the judge in his other case. Nevertheless, this case was continued past the speedy trial date. Frazee then moved for discharge and upon denial thereof he appealed to the circuit court. That court treated the appeal as a petition for writ of prohibition, granted the writ and ordered Frazee discharged. From that decision the state has filed a plenary appeal in this court which we now consider as a petition for writ of certiorari.

We look to rule 3.191(d)(3), Florida Rules of Criminal Procedure, for instruction as to when a motion for discharge should be granted for violation of the speedy trial rule. The rule provides that a pending motion for discharge shall be granted unless it is shown that "(ii) the failure to hold trial is attributable to the accused, a co-defendant in the same trial, or their counsel, or (iii) the accused was unavailable for trial under section (e)...." Section (e) provides that a person is considered unavailable for trial when "the person or his counsel is not ready for trial on the date trial is scheduled."

Frazee contends that neither he nor his counsel ever requested any type of delay. Technically, that is true. But the facts of this case show that defense counsel left the trial court with no other alternative other than to order a continuance. The trial had been set for more than two weeks to start on April 28. That morning, defense counsel appeared and announced, for the first time, that he could not try the case because he was scheduled for trial before another judge. Counsel refused, however, to request a continuance on behalf of his client. He placed the responsibility for his unavailability on the State, because it was another judge who prevented him from being present for trial. He rejected a suggestion that the case be tried later that night because he would be fairly well exhausted by that time.

This rule has been construed to mean that any defense request to postpone a case is a motion for a continuance waiving speedy trial rights regardless of its characterization. Blackstock v. Newman, 461 So.2d 1021 (Fla. 3d DCA), rev. denied, 467 So.2d 999 (Fla.1985); accord State v. (Buster) Brown, 412 So.2d 448 (Fla. 5th DCA 1982); State v. (Michael) Brown, 394 So.2d 218 (Fla. 5th DCA 1981). But more in point are State v. McCoy, 369 So.2d 1027 (Fla. 3d DCA 1979), and State v. Belcher, 372 So.2d 546 (Fla. 3d DCA 1979). In each case the defendant's counsel advised the court that he was ready for trial but could not be present because he was trying another case before another judge. The holding in each case was that the defendant could not be considered available for trial during the pertinent period and thus waived the right to speedy trial. Thus, without belaboring the point further, we believe the trial judge's ruling denying Frazee's motion for discharge was correct. Regardless of his counsel's refusal to expressly request a continuance and his statement that he was ready for trial, his involvement in the trial of another case at that time precluded the defendant from being ready for trial within the meaning of the rule.

We therefore conclude that the trial court correctly denied Frazee's motion for discharge and the circuit court committed error in granting prohibition and ordering Frazee's discharge.

Turning now to the more difficult question, we must decide if this court can or should reach the issue presented in view of the limited review granted in certiorari. While acknowledging that the question is debatable, we believe that certiorari should be granted and the matter reviewed.

In Combs v. State, 436 So.2d 93 (Fla.1983), the supreme court pointed out that the parameters of district court of appeal review in the present case "should not be narrowly construed so as to apply only to violations which effectively deny appellate review or which pertain to the regularity of procedure." Rather, the court held that the district court "should not be as concerned with the mere existence of legal error as much as with the seriousness of the error." The error should constitute a departure from the essential requirements of law and, as the court put it in Combs, the district courts should exercise their discretion only where there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.

In the present case we are dealing with a ruling discharging a defendant charged with a crime; a ruling which departs from the precedential constructions of the speedy trial rule. It therefore seems to us that in this posture, we are dealing with the violation of a clearly established principle of law resulting in a miscarriage of justice. Combs teaches that the district court should exercise its discretion in favor of granting certiorari in this instance.

Accordingly, we grant the petition for writ of certiorari filed by the State of Florida and quash the writ of prohibition issued by the circuit court.

GLICKSTEIN, C.J., concurs.

FARMER, J., dissents with opinion.

FARMER, Judge, dissenting.

Frazee was charged by information with driving while under the influence, and his case was scheduled for trial in the County Court for Broward County two days before the speedy trial time limit would have run. On the day of trial, his counsel appeared before the County Court and advised the judge that he was still in a jury trial before another judge. Over his protest, the judge charged a defense continuance and reset the trial for a later date.

Some time before the new trial date, Frazee moved for a discharge, alleging a violation of his speedy trial rights. The County Judge denied the motion, which Frazee appealed to the circuit court. The Circuit Judge assigned to the case ¹ treated the appeal as a petition for a writ of prohibition. After considering the briefs of the parties, the circuit judge granted the writ, finding under the circumstances a violation of Frazee's speedy trial rights. The State has since filed a notice of appeal in this court.

Although the parties themselves have not raised it, I believe that we are confronted with a jurisdictional problem. This case has proceeded in this court as an ordinary appeal under rule 9.110, Florida Rules of Appellate Procedure. Yet, rule 9.030(b)(2)(B) provides as follows:

(b) Jurisdiction of District Courts of Appeal.

(2) Certiorari Jurisdiction. The certiorari jurisdiction of district courts of appeal may be sought to review * * * (B) final orders of circuit courts acting in their review capacity.

This provision calls into question whether our authority to review this decision of the circuit court is limited to common law certiorari, rather than plenary appeal.

Indisputably, writs of prohibition are obtainable in the circuit courts in original proceedings under rule 9.100. This rule evidences, to me, an intent to permit merely the quite limited form of common law certiorari review by a district court of orders of the circuit courts which, though arising from extraordinary remedies like prohibition, are essentially similar to the "appeal" kind of review, rather than purely original proceedings. The issue in this case might thus be framed as follows:

Were the words "acting in their review capacity" in rule 9.030(b)(2)(B) intended actually to have the narrower meaning of "acting in their capacity to review by appeal final judgments of the county courts?

Neither section 924.06, Florida Statutes (1991), nor rule 9.140(b)(1) contain any provision for a defendant to take an immediate appeal from a pretrial order denying a speedy trial discharge, as this defendant did. Hence, a defendant could properly get review of a denial of a speedy trial discharge as a matter of right only in connection with an appeal from a final judgment of conviction and sentence.

In spite of occasional supreme court statements that writs of prohibition cannot be used to review decisions in criminal cases where a defendant has an adequate remedy by appeal, see e.g., Sparkman v. McClure, 498 So.2d 892 (Fla.1986), it has nevertheless allowed the writ to become a substitute for plenary review where a final appeal would be too little and too late. In Harrison v. Murphy, 132 Fla. 579, 181 So. 386 (Fla.1938), the court made clear that, even though prohibition will not lie when the usual and ordinary form of remedy by appeal is sufficient to afford redress, when an appeal is entirely inadequate or...