State v. McDonald, 82-122

• Decision Date: 02 February 1983
• Docket Number: No. 82-122,82-122
• Citation: 425 So.2d 1380
• Parties: STATE of Florida, Appellant, v. Jack McDONALD, Appellee.
• Court: Florida District Court of Appeals

Page 1380

425 So.2d 1380

STATE of Florida, Appellant, v. Jack McDONALD, Appellee.

No. 82-122.

District Court of Appeal of Florida,

Fifth District.

Feb. 2, 1983.

Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellant.

No appearance for appellee.

DAUKSCH, Judge.

This is an appeal from an order of discharge under the speedy trial rule. Fla.R.Crim.P. 3.191. We affirm the order.

Appellee McDonald and Peter Ventura were arrested and charged with Murder in the First Degree on account of the death of Robert G. Clemente. The arrest of McDonald occurred on June 25, 1981 and according to the speedy trial rule the trial was required to have been commenced within 180 days, or by December 22, 1981. Fla.R.Crim.P. 3.191(a)(1). Because McDonald had not been brought to trial within the requisite time period he obtained the order of discharge. Fla.R.Crim.P. 3.191(a)(1), 3.191(d)(1).

The state appeals the discharge alleging that exceptional circumstances had been shown which prevented a timely trial. The speedy trial rule permits an extension of its effect once the court by written or recorded order finds one of the enumerated exceptional circumstances has been established. Rule 3.191(d)(2) ¹. The definition of exceptional circumstances, under the Rule, is as follows:

(f) Exceptional Circumstances. As permitted by this Rule, the court may order an extension of time or continuance where exceptional circumstances are shown to exist; exceptional circumstances shall not include general congestion of the court's docket, lack of diligent preparation or failure to obtain available witnesses, or other avoidable or foreseeable delays.

Exceptional circumstances are those which as a matter of substantial justice to the accused or the State or both require an order by the court. Such circumstances include (i) unexpected illness or unexpected incapacity or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial Under the foregoing circumstances the Court may set a new trial date within a reasonable time.

(ii) a showing by the State that the case is so unusual and so complex, due to the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation or preparation within the periods of time established by this rule; (iii) a showing by the State that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time; provided, not more than two continuances shall be granted on this ground; (iv) a showing by the accused or the State of necessity for delay grounded on developments which could not have been anticipated and which will materially affect the trial; (v) a showing that a delay is necessary to accommodate a co-defendant, where there is reason not to sever the cases in order to proceed promptly with trial of the defendant; (vi) a showing by the State that the accused has caused major delay or disruption or preparation of proceedings; as by preventing the attendance of witnesses or otherwise.

The order which granted the appellee's motion for discharge is set out below:

ORDER

THIS CAUSE having come on to be heard in Open Court on January 18, 1982, upon Defendant, JACK McDONALD'S, "Motion For Discharge" pursuant to FrCP 3.191(d)(1), and the Court having heard argument of counsel, makes the following finding of facts:

1. Defendant, JACK McDONALD, was indicted for First Degree Murder on June 25, 1981.

2. Defendant, JACK McDONALD, was arrested June 25, 1981.

3. Defendant, JACK McDONALD, was incarcerated in the Volusia County Jail from June 25, 1981, and continuously for One Hundred and Eighty-One (181) Days subsequent to that date.

4. The State of Florida continued this matter at Pre-Trial four (4) times for the following reasons:

a. On August 25, 1981, the State of Florida moved for a continuance and extension of Speedy Trial as they were unable to locate PETER VENTURA, the charged Co-Defendant.

b. On October 15, 1981, the State of Florida moved for a continuance based on the fact that Co-Defendant, PETER VENTURA, is a fugitive and being sought by authorities.

c. On November 6, 1981, the State of Florida, moved for a continuance based on the fact that they had a complex land fraud trial in Putnam County and would be unable to participate in Defendant, JACK McDONALD'S, trial.

d. On December 1, 1981, the State of Florida moved for a continuance and extension of Speedy Trial based on the grounds that they were unable to locate PETER VENTURA, the charged Co-Defendant.

5. On December 2, 1981, the State announced there was insufficient evidence to try Defendant, JACK McDONALD, without Co-Defendant, PETER VENTURA, who is at large and if Co-Defendant, PETER VENTURA, was found the State would move for a severance, try Co-Defendant, PETER VENTURA, first and attempt to use Co-Defendant, PETER VENTURA'S, testimony to convict Defendant, JACK McDONALD. The State of Florida never informed the Court that Co-Defendant, PETER VENTURA, would testify, only that they would attempt to make him a witness. Co-Defendant, PETER VENTURA, at his arrest made no statement admitting guilt nor has Co-Defendant, PETER VENTURA, ever agreed to testify for the State.

6. There was no exceptional circumstances justifying an extension of Speedy Trial and the State's Motion for Extension of same was denied on December 21, 1981.

7. On January 11, 1982, the Defendant, JACK McDONALD, announced ready for...