State v. Pearce, AA--435
| Decision Date | 24 September 1976 |
| Docket Number | No. AA--435,AA--435 |
| Citation | 336 So.2d 1274 |
| Parties | The STATE of Florida, Appellant, v. James David PEARCE and William Lee Kinner, Appellees. |
| Court | Florida District Court of Appeals |
Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., Tallahassee, for appellant.
A. K. Black, Lake City, for appellees.
SUBSTITUTED OPINION ON REHEARING
The State appeals from an order dismissing the information against appellees Pearce and Kinner on the ground they were not given a speedy trial as required by Rule 3.191, R.Cr.P. The 180-day period prescribed by the Rule expired during the State's interlocutory appeal, pursuant to § 924.071, F.S., from an earlier order granting appellees' motion to suppress certain evidence. On that appeal we sustained the State's position and remanded the case for further proceedings. State v. Pearce, et al., 318 So.2d 455 (Fla.App.1st, 1975).
Shortly after perfecting its interlocutory appeal from the suppression order, the State filed a motion to stay the running of the speedy trial period pending the appeal. Granting the motion without a hearing, the trial court ordered an indefinite stay. Later, considering appellees' motion for discharge following our remand, the trial court concluded that the State's interlocutory appeal had deprived it of jurisdiction to take any action in the matter, that its stay order was a nullity and that, 180 days having long since passed, Pearce and Kinner were entitled to discharge.
Upon our initial consideration of this case, we were of the view that the State's interlocutory appeal pursuant to § 924.071,1 F.S., and Rule 6.3 b, F.A.R., perfected an automatic stay of the case in the trial court and that application to the trial court for extension of the speedy trial period, Rule 3.191(d)(2)(iv), R.Cr.P., was unnecessary. We reasoned that the Supreme Court adopted § 924.071 when it promulgated Appellate Rule 6.3 b 2 and thus made effective the statute's provision for an automatic stay. Remanding the case for trial, our initial opinion acknowledged our disagreement with the decision of the District Court, Third District, in Mullin v. State, 307 So.2d 829 (Fla.App.3d, 1975).
Appellees' petition for rehearing calls to our attention that our announced decision is in conflict also with the recent decision of the District Court, Fourth District, in State v. Cannon, 332 So.2d 127 (Fla.App.4th, 1976), following Mullin. We have therefore reconsidered our position in the light of the substantial reasoning contributed by Cannon.
Noting that the speedy trial rule adopted in February 1971 3 permits the trial court to order an extension of the speedy trial period for 'a period of reasonable and necessary delay . . . for interlocutory appeals,' Rule 3.191(d) (2)(iv) R.Cr.P., the Cannon court held that the rule superseded the automatic stay provisions of § 924.071, F.S. 1967, as adopted by Rule 6.3 b, F.A.R., in October 1968. 4 The Cannon court buttressed its application of conventional rules of interpretation 5 by remarking on the undesirable consequences of permitting the State to take an interlocutory appeal and automatically delay the trial without any judicial determination that the appeal was not frivolous or had not been taken simply for the purpose of securing such a delay.' 322 So.2d at 127.
We remain of the view that Rule 6.3 b, F.A.R., preserves the automatic stay provisions of former § 924.071(2), F.S., notwithstanding that the speedy trial rule otherwise countenances extensions only on order of the trial court. The contrary interpretation proceeds from the impression that the 1971 speedy trial rule could have had no purpose, in providing for orders to extend the trial time during interlocutory appeals, except to nullify by that inconsistent measure the automatic stay previously afforded the State by former § 924.071(2). We do not conceive that the speedy trial rule must necessarily be given that effect, nor that it should be if another course is possible.
When the Supreme Court adopted the speedy trial rule in 1971, there were as now two statutes on the books authorizing appeals by the State in criminal cases: § 924.07 and § 924.071. The context and language of § 924.071(2) indicate a legislative purpose to stay the case automatically only if the State's interlocutory appeal is one authorized by § 924.071(1), i.e., taken from an order 'dismissing a search warrant, suppressing evidence obtained by search and seizure, or suppressing a confession or admission made by a defendant.' 6 The legislature did not provide an automatic stay during an interlocutory appeal by the State under § 924.07, from an order dismissing less than all counts of an indictment or information, an order granting a new trial or 'other pretrial orders.' Sec. 924.07(1), (2), (8), F.S.
In this light, the speedy trial rule's provision for court-ordered extensions during interlocutory appeals may be seen as having a purpose other than to repeal the automatic stay afforded by former § 924.071(2). That purpose was to permit the trial court to grant or deny an extension of the speedy trial period and a stay of the trial when the State proposed an interlocutory appeal in circumstances justified by § 924.07 but not by § 924.071(1). 7 We therefore need not presume that criminal Rule 3.191(d)(2)(iv) was intended to excise from § 924.071, made effective by appellate Rule 6.3 b, the automatic stay which theretofore was integral.
There are practical reasons so to reconcile the provisions of § 924.071(2), F.S., and Rule 3.191(d)(2)(iv), R.Cr.P., rather than to find intractable conflict there.
First, we must recognize that ordinarily there will be no appealable order under § 924.071 until a substantial portion of the speedy trial period has run. It will therefore frequently be difficult if not impossible to render an appellate decision within the unextended period for speedy trial. See State v. Wilson, 305 So.2d 232 (Fla.App.3d, 1974), cert. den. 314 So.2d 781 (Fla.1975). Therefore, given the State's right to appeal the interlocutory orders described in § 924.071(1), an automatic stay of the trial and a corresponding extension of the speedy trial period is essential to the effectiveness of the appeal. Although trial judges will not groundlessly deny the State's request for a stay and extension, we doubt that such an appeal should be made to depend on permission of the trial judge whose order is the subject of it. An order denying a stay and extension is not itself an interlocutory order which the State may appeal under appellate Rule 6.3 b; and, though appellate courts have power to issue stay writs necessary to make our jurisdiction effective, Art. V, § 4(b)(3), Florida Constitution, it is not clear that we have power thereby to extend the speedy trial period of Rule 3.191 or that, from afar, we should.
Second, trial judges should not be required to guess at what a 'reasonable and necessary' time for appeal may be, as they must if they are to enter orders extending the time for trial only for such a period. 8 If on the other hand trial judges are rotely to grant extensions for the appeal period regardless of how long that may be, the Rule does not rely on the trial judge's balancing of the need for delay against the need for trial in a particular case and nothing is lost by relieving the judge of the mechanical chore of entering an order.
Finally, an automatic extension of the Rule 3.191 trial period does not leave the defendant without a remedy for a dilatory or frivolous appeal by the State. If the matter presented on appeal is so insignificant, the State's position so untenable or the appellate delay so prejudicial that the accused is deprived of his constitutionally secured right to a speedy trial, those matters may be asserted by a motion for discharge which is based directly on the Constitution rather than on rights derived from Rule 3.191. State ex rel. Gentry v. Fitzpatrick, 327 So.2d 46, 47--48 (Fla.App.1st, 1976); Barker v. Wingo, 407 U.S. 514, 92...
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...829 (Fla. 3d DCA 1974). We find these decisions conflict with State v. Smail, 346 So.2d 641 (Fla. 2d DCA 1977), and State v. Pearce, 336 So.2d 1274 (Fla. 1st DCA 1976). There is not only irreconcilable conflict but also confusion on the proper application of the speedy trial rule when there......
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