State v. Reaves

• Decision Date: 02 December 1992
• Docket Number: No. 92-0809,92-0809
• Citation: 609 So.2d 701
• Parties: 17 Fla. L. Week. D2692 STATE of Florida, Appellant, v. Kevin REAVES, Joe Chandler, and Adrienne Anderson, Appellees.
• Court: Florida District Court of Appeals

Page 701

609 So.2d 701

17 Fla. L. Week. D2692

STATE of Florida, Appellant, v. Kevin REAVES, Joe Chandler, and Adrienne Anderson Appellees.

No. 92-0809.

District Court of Appeal of Florida Fourth District.

Dec. 2, 1992.

Rehearing Denied Jan. 5, 1993.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Joan Fowler, Senior Asst. Atty. Gen., West Palm Beach, and Carolyn V. McCann, Special Asst. Atty. Gen., Fort Lauderdale, for appellant.

Ken Lange of Law Offices of Ken Lange, Bay Harbor Islands, for appellees.

ANSTEAD, Judge.

This is an appeal from a judgment dismissing first degree murder charges against the three appellees based upon a violation of the speedy trial rule. We reverse.

FACTS

On June 20, 1990, Adrienne Anderson, Kevin Reaves, and Joe Chandler were indicted by a grand jury on first degree murder charges. All three defendants later agreed to be jointly represented by the same attorney, Ken Lange. During the course of the proceedings the defendants requested trial continuances six (6) times, the last being on November 12, 1991, when defense counsel requested a defense continuance because his wife had suffered a miscarriage. At the November 12 hearing, trial was rescheduled for March 2, 1992.

Two weeks later, on November 27, 1991, defense counsel filed a "Demand Pursuant to Rule 3.191(a)(2)." That rule permits a defendant, under certain conditions, to seek a trial within sixty (60) days. The body of the demand simply repeated the title and stated in toto that the demand was being filed. The certificate of service certified that a copy had been hand-delivered to "the State Attorney's Office."

Five days later, on December 2, 1991, a written status report was filed by defense counsel with the court which affirmatively asserted the defendants' readiness for the trial scheduled on March 2, 1992. The status report contained no reference to the defendants' "Demand Pursuant to Rule 3.191(a)(2)." However, the report listed eighteen (18) motions which defense counsel asserted he needed to prepare, file, and have heard before the trial scheduled for March 2. These motions were eventually set for hearing by defendants on February 27, 1992, ¹ a date outside of the speedy trial period provided in rule 3.191(a)(2). The certificate of service on the status report certified that a copy thereof had been mailed to Assistant State Attorney Jeff Marcus, the attorney representing the state in the case.

On January 17, 1992, defense counsel filed a document entitled "Demand Pursuant to Rule 3.191(a)(2)(4) & (i)." The body of this motion again merely repeated the title. This time, the certificate of service certified that a copy had been hand-delivered to the state attorney's office. This demand, and the November 27th demand, are the only two documents in the record that counsel filed in the case that fail to refer to the particular prosecutor by name in the certificate of service. It appears from the record that this was not accidental. At the hearing on these demands, counsel stated that this conduct was intentional, including the titling of the demands by rule number only, and was calculated to not make it "horribly obvious I was filing the motion."

Finally, a document entitled "MOTION FOR FINAL DISCHARGE AS TO ALL THREE DEFENDANTS/VIOLATIONS OF SPEEDY TRIAL UPON DEMAND," was filed by defense counsel on February 4, 1992. The certificate of service stated that a copy of the motion had been mailed to Assistant State Attorney Jeff Marcus. As indicated, this motion was titled in all capital letters and the body of the motion contained a detailed recitation of the circumstances allegedly entitling the defendants to discharge. Paragraph 2 of this motion stated:

On November 26, 1991, the undersigned mailed for filing a written Status Report, pages 1-2. In this status letter, the undersigned informed the Court and State that all defendants were ready for trial, that all discovery and depositions had been completed and what remained was the filing and hearings on some 18 defense motions. (Actually, 19 defense motions, as one not listed in this Status Report is a motion for Brady disclosure as to exculpatory evidence in the State's possession regarding lead Detective Steven Wiley and any investigation into Detective Wiley's conduct/misconduct in the Joseph Viscido, Jr. murder case, Judge Barry Goldstein).

The motion asserted that the defendants were entitled to discharge because the clerk of the court never "calendared the matters for hearing and/or trial as is required under the rules."

On February 6, 1992, the state filed a "Motion to Strike Defendants' Demands for Speedy Trial, Demands for Discharge, and Motions for Final Discharge," asserting that: (1) neither demand, of November 27th or January 17th, was received; (2) the demands were improperly prepared in that the captions did not apprise the reader of the substance of the demand, and the use of "the State Attorney's Office" in the certificate of service was improper under the court's local rules, and (3) the demands were filed in bad faith.

The next day, February 7, 1992, the trial court held a hearing on defendants' motion for discharge and the state's motion to strike. At the hearing, defense counsel stated that both demands were delivered to the main reception desk in the state attorney's office. The state presented sworn testimony of several employees, including that of Jeff Marcus, that no one at that office had seen either the November 27th or the January 17th demand. Marcus testified that, until February 4th, 1992, he had no knowledge of either demand because he had not received them and they were not in the state attorney's file. Subsequently, on February 14, 1992, the trial court granted the motion for speedy trial discharge, essentially holding that the defendants had complied with all of the technical provisions of the rules in seeking a speedy trial and a discharge when such trial was not forthcoming.

LAW AND ANALYSIS

Under the Florida Constitution, an accused has a right to a speedy trial. Article I. Section 16, Florida Constitution. Florida Rule of Criminal Procedure 3.191 spells out the procedures for ensuring this right. This rule allows the defendant to demand a trial within 60 days by "filing with the court having jurisdiction and serving upon the state attorney a Demand for Speedy Trial." Fla.R.Crim.P. 3.191(a)(2). If the defendant is not tried within the prescribed time, and he has been otherwise available for trial, he may file and properly serve a motion for discharge. Fla.R.Crim.P. 3.191(d)(1); (i)(2).

Rule 3.191(d)(3) provides:

Delay and Continuances; Effect on Motion.

If trial of the accused does not commence within the periods of time established by this Rule, a pending motion for discharge shall be granted by the court unless it is shown that (i) a time extension has been ordered under (d)(2) and that extension has not expired, or (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), or (iv) the demand referred to in section (c) is invalid. If the court finds that discharge is not appropriate for reasons under (d)(3)(ii), (iii), or (iv), the pending motion for discharge shall be denied provided however, trial shall be scheduled and commenced within 90 days of a written or recorded order of denial.

(Emphasis supplied). In addition, rule 3.191(c), provides, in pertinent part:

No demand for speedy trial shall be filed or served unless the accused has a bona fide desire to obtain a trial sooner than otherwise might be provided. A demand for speedy trial shall be deemed a pleading by the accused that he is available for trial, has diligently investigated his case, and that he is prepared or will be prepared for trial within 5 days.

The test used to determine whether the accused has complied with these provisions is an objective one. See State v. Kaufman, 421 So.2d 776 (Fla. 5th DCA 1982).

In Jones v. State, 449 So.2d 253 (Fla.), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984), the defendant had filed seventeen written pro se motions, a memorandum of law covering a wide variety of subjects, and a request for discovery, all in the two weeks just prior to his filing a speedy trial demand. The Florida Supreme Court held that it was "patently clear from the record that defendant was not prepared for trial on [the date he filed his speedy trial demand], and could not be prepared within five days. The demand for speedy trial was spurious." Id. at 262; see also State ex rel. Ranalli v. Johnson, 277 So.2d 24 (Fla.1973) (by filing motion to dismiss alleging insufficient information to prepare a defense two weeks after demand, defendant admitted his demand was spurious, because it indicated he was, or would be, prepared for trial); Darby v. State, 463 So.2d 496 (Fla. 1st DCA 1985), approved, 482 So.2d 1368 (Fla.1986) (a defendant who files in bad faith a demand when he obviously is not prepared to go to trial within the period provided in rule 3.191(a)(2) is not entitled to rely on the lesser period in which to be tried).

On the other hand, in State v. Embry, 322 So.2d 515 (Fla.1975), the supreme court held that a demand should not have been treated as spurious for the sole reason that the accused filed a motion to suppress after filing his demand. The court found no error in striking the demand, however, based upon the trial court's action in subsequently scheduling a hearing on the motion to suppress and setting trial just outside the speedy trial time. The court held that the trial court had effectively extended the speedy trial time to take care of pretrial motions as authorized by rule 3.191(d)(2).

Hence, it cannot be said that the mere filing of a motion by the defendant will always defeat a request for a speedy trial. Whether such matters require pretrial action in order to prepare a...