Stuart v. State
| Decision Date | 08 June 1978 |
| Docket Number | No. 50930,50930 |
| Citation | 360 So.2d 406 |
| Court | Florida Supreme Court |
| Parties | Alphonso STUART, Petitioner, v. STATE of Florida, Respondent. |
Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for petitioner.
Robert L. Shevin, Atty. Gen., Tallahassee, and Linda Collins Hertz, Asst. Atty. Gen., Miami, for respondent.
By petition for a writ of certiorari we have for review a decision of the District Court of Appeal, Third District (Stuart v. State, 339 So.2d 659), which conflicts with decisions in Gue v. State, 297 So.2d 135 (Fla.2d DCA 1974) and State ex rel. Flowers v. Goodman, 241 So.2d 457 (Fla.3d DCA 1970). We have jurisdiction, pursuant to Article V, Section 3(b)(3), Florida Constitution.
After being taken into custody on November 8, 1974, petitioner was informed against for breaking and entering with intent to commit grand larceny on December 12, 1974. The case was first set for trial on March 3, 1975. On that date defense counsel announced to the court readiness for trial, but the case was postponed by the court on its own motion until April 28, 1975. On April 28, defense counsel against announced that the petitioner was ready for trial. Pursuant to request by the state, the case was continued again, and set down for April 30, 1975, for trial or the entry of a plea. On April 30, with the defendant before the court, the defense once again announced readiness to proceed, and informed the court of its rejection of the state's plea offer. The state then requested that the case be put on the "stand-by calendar."
On May 7, 1975, the 180th day following petitioner's arrest and a week after the court and the state were notified in open court of defendant's rejection of the state's plea offer, the case was again called for trial. Counsel for the defense appeared and announced four times that it was ready to proceed. The state expressed a desire to start the trial on the following day, indicating the absence of its chief witness. Counsel for the state at this time indicated that both the state and defense wanted the continuance so that the witness and the defendant could both be present. Defense counsel immediately corrected the prosecutor saying, Defense counsel informed the court that the defendant was on telephone stand-by and would appear if the court decided to proceed with the trial that day.
In response to inquiry as to the existence of a speedy trial problem, counsel for the state advised the court that if trial commenced any day that week it would be timely. This advice was apparently based on the belief that since the weekly jury venire had been sworn on Monday of that week, within the period of the rule, trial before jurors from that venire would be timely commenced. The trial judge apparently felt that even more flexibility was allowed, as is indicated by his statement with regard to continuing the trial over to the next day: "I will put it over to tomorrow, but if a trial starts and runs three days, I don't want anyone complaining they can't get a speedy trial." The prosecutor responded, "I understand." Defense counsel made no objection, but announced again that the defendant was prepared to proceed "today."
On May 8, 1975, the defendant filed his motion for discharge under the speedy trial rule, Florida Rule of Criminal Procedure 3.191, which was denied. After the jury returned a verdict of guilty, the trial court withheld adjudication of guilt and placed petitioner on probation. The district court of appeal affirmed, on the ground that petitioner "effectively waived his right to be tried within the time limitation of the Rule because of the plea negotiations and because of the defense counsel's acquiescence to the Court setting the trial on the 181st day." The court cited State v. Kelley, 322 So.2d 581 (Fla.1st DCA 1975) and State v. Earnest, 265 So.2d 397 (Fla.1st DCA 1972).
If there is any theory upon which the trial court might properly have denied petitioner's motion for discharge, then the district court was correct in affirming, even though the trial court's stated or indicated reasons be erroneous. Cohen v. Mohawk, Inc., 137 So.2d 222 (Fla.1962). Accordingly, we will address every issue that appears to be relevant to a complete review of the district court's decision. The issues are: (1) whether trial commenced within the period provided by the speedy trial rule; (2) whether petitioner failed to be "continuously available for trial" as required by Rule 3.191(a) (1) and (e), or waived strict compliance with the Rule by participating in plea negotiations; (3) whether there was waiver by agreement or acquiescence to a trial date beyond the rule period; (4) whether the nonpresence of the defendant on the 180th day indicated a lack of continuous availability; (5) whether the continuance granted on the 180th day should be deemed an extension of the rule period based on exceptional circumstances under Rule 3.191(d)(2); and, finally (6) whether under all the circumstances, the trial court was misled by defense counsel's representations in court on the 180th day.
The state contends that petitioner was brought to trial in a timely fashion. The record indicates that the trial court proceeded on the assumption that petitioner's trial, which began on the 181st day following his being taken into custody on the charge, was timely commenced under the rule.
Counsel for the state and counsel for petitioner appeared before the trial court on Wednesday, May 7, 1975, the 180th day. The state advised the court that a commencement of the trial would be timely if had any day that week. The state persists in the contention here that a commencement is timely if trial begins before a panel of jurors who were sworn as prospective jurors within the period provided for by the rule.
Florida Rule of Criminal Procedure 3.191(a)(3) provides:
Commencement of trial. A person shall be deemed to have been brought to trial if the trial commences within the time herein provided. The trial is deemed to have commenced when the trial jury panel is sworn for voir dire examination, or, upon waiver of a jury trial, when the trial proceedings begin before the judge.
The state contends that the swearing of the weekly jury venire at the beginning of the week constituted the swearing of the trial jury panel for voir dire examination. The state cites State ex rel. Maines v. Baker, 254 So.2d 207 (Fla.1971), in support of this proposition, but its reliance thereon is misplaced. In that case a jury panel was sworn the morning of the last day on which the defendants could be brought to trial. At this time the clerk of the court propounded certain questions and excused some members of the panel. Neither the prosecuting attorney, the defendants, nor defense counsel were then present. Jurors from this panel were then called for the defendants' trial and voir dire examination was begun the same day. The state would seem to make much of the fact that there was no further oath administered to the prospective jurors after their morning swearing as a jury venire. In holding that trial was timely commenced, this Court pointed out that the trial jury was sworn And voir dire examination begun on the last day. The fact that the prospective jurors were seated for voir dire for a particular trial within the period of the rule distinguishes Maines from the case at bar. See also State v. May, 332 So.2d 146 (Fla.3d DCA), Cert. denied, 339 So.2d 1172 (Fla.1976), which held that the swearing and qualifying of a panel of jurors for the week does not amount to commencement where the case is not called for trial, and a prospective trial jury is not called and seated for voir dire in the particular case, citing Maines. Accord Hall v. State, 348 So.2d 932 (Fla.2d DCA 1977).
Unlike the trial court, the district court implicitly recognized that the trial was not commenced prior to the expiration of the 180th day. This conclusion would have been required under its holding in May, above. The district court held, however, that there was a waiver of strict compliance with the rule, indicating that this finding was predicated in part on petitioner's participation in plea negotiations which caused delay.
The state argues that the district court should be upheld on this point on the ground that the delay was in part the responsibility of petitioner because his refusal of a plea bargain offer took place only one week prior to the running of the speedy trial period, and cites State ex rel. Gutierrez v. Baker, 276 So.2d 470 (Fla.1973), for support. In that case an assistant public defender other than the one who was handling the defendant's case waived strict compliance in order to allow more time for plea bargaining. It was held that a public defender may effectively waive a defendant's right to compliance with the rule without notice to or consent of the defendant where it is felt that the interests of the defendant are best served by trying to gain more time for the negotiation of a plea. The case says nothing about plea bargaining itself constituting a waiver.
In State v. J. H., 295 So.2d 698 (Fla.1st DCA 1974), the state appealed a dismissal of a petition to have a juvenile adjudged delinquent, the dismissal having been granted on the ground of violation of the speedy trial rule. The state there contended that a motion for withdrawal as counsel filed by the public defender constituted a waiver of speedy trial. The district court held that such a move was not a waiver where the motion was neither frivolous nor filed for the purpose of causing delay. Similarly, in the case at bar, there has been no showing that petitioner's participation in plea negotiations was undertaken in bad faith or for the purpose of delay.
The state cites Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974), for the proposition that...
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