Taylor v. State, BR-47

• Decision Date: 13 February 1990
• Docket Number: No. BR-47,BR-47
• Citation: 557 So.2d 138
• Parties: 15 Fla. L. Weekly D437 John Henry TAYLOR, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 138

557 So.2d 138

15 Fla. L. Weekly D437

John Henry TAYLOR, Jr., Appellant, v. STATE of Florida, Appellee.

No. BR-47.

District Court of Appeal of Florida First District.

Feb. 13, 1990.

Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

John Henry Taylor, pro se.

Robert A. Butterworth, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

John Henry Taylor, Jr., appeals a final judgment adjudicating him guilty of first-degree felony murder. ¹ Of the several issues raised on appeal, three require reversal.

Taylor was charged with first-degree murder of Terry Durham, and the court appointed a public defender to represent him. Five days before trial was to commence, Taylor's attorney filed a motion for continuance stating that he needed additional time to complete discovery and that Taylor would waive speedy trial upon the court's granting the motion. The attorney explained at a hearing on this motion that he needed the additional time to investigate a crucial change in the testimony of one of the state's key witnesses, LaPorshal Austin. The court recognized that Taylor opposed his attorney's motion for continuance and granted the motion against Taylor's wishes.

Subsequent to this hearing, Taylor, acting pro se, filed several pleadings and letters with the court requesting recusal of the trial judge on grounds of prejudice, appointment of a different attorney to represent him because the attorney then representing him had obtained a continuance over his objection, and discharge of the charged offense on the ground that his right to a speedy trial had been violated. Taylor reiterated at a subsequent motion hearing that he did not want his court-appointed attorney to represent him any longer. The trial judge recalled at the hearing that he had granted the motion for continuance over Taylor's objection, and stated that, "in a sense I sort of crammed it down Mr. Taylor's throat, being continued even though he didn't want it." The judge then told Taylor that he was "going to break the speedy trial rule." At that time, the public defender moved to withdraw from representing Taylor, alleging an irreconcilable conflict with Taylor and a consequent duty to withdraw. Taylor again stated to the court that he wanted to fire the attorney, and stated that he understood that if the court granted his request, the case would have to be rescheduled for a date 6 months later. The court denied the attorney's request to withdraw and denied Taylor's motion that the attorney be removed from his case. Taylor then sought to disqualify the presiding judge, asserting that the trial judge had stated in open court that he was going to "step down" from the case because he was prejudiced. The judge denied making the statement, accused Taylor of calling him a liar, and abruptly ended the hearing.

Taylor's appointed counsel subsequently filed an emergency motion for a temporary restraining order requesting that the court prohibit all parties from contacting witness LaPorshal Austin. The motion alleged, inter alia, that the prosecutor had violated Fla.R.Cr.P. 3.220(b)(3) by directing non-trial subpoenas to Austin and three members of her family without notice to the defense and that the subpoenas compelled Austin to appear at the state attorney's office where she was examined outside the presence of defense counsel. Taylor's attorney presented the motion to the chief judge of the circuit, as the judge assigned to the case was out of town, but the chief judge refused to rule on it. Taylor's appointed counsel then filed a "motion for continuance, for plenary hearing on the issues of discovery violations, intimidation of witnesses and/or interference with defense investigation and advocacy, and prosecutorial misconduct, and for ancillary relief." The motion realleged many of the statements contained in the motion for restraining order and asked for a continuance until such time as the trial court had the opportunity to rule against a fully-developed factual background. The trial judge denied the motion without an evidentiary hearing.

The case proceeded to a jury trial. Evidence was presented to establish that on the date of Terry Durham's death, Taylor and Durham argued about money that Durham allegedly owed Taylor for selling fake cocaine (it was B.C. Headache Powder) for Taylor. Evidence was presented that while Taylor and Durham were arguing, Durham reached behind him, as if he were reaching for a gun, and Taylor shot him in the head. The jury found Taylor guilty of first degree felony murder, ² and on November 26, 1986, the lower court entered judgment in accordance with the verdict and sentenced Taylor to life in prison.

After the public defender's office filed an Anders brief on appeal, Taylor filed a pro se brief. He argued that he was deprived of due process by being convicted of a crime not charged, and that the state did not prove the felony-murder charge beyond a reasonable doubt. We affirm these issues without discussion. However, the newly-appointed public defender's brief presents five additional issues that require discussion. ³

The first point raised in this brief argues that the trial court denied Taylor his constitutional right to a speedy trial when it granted his attorney's motion for continuance over Taylor's own objections. We have found no Florida case determining whether a criminal defendant's right to a speedy trial ⁴ is waived when the trial court, over the defendant's express objections, grants a continuance requested by the defendant's counsel on the ground that he is not prepared for trial. In State v. Abrams, 350 So.2d 1104 (Fla. 4th DCA 1977), the fourth district stated that the right to a speedy trial is waived when the defendant or his attorney requests a continuance. Abrams further states that the acts of an attorney on behalf of his client are binding on the client even if done against the client's wishes. 350 So.2d at 1105. This second statement is only dictum, however, because the facts recited in Abrams do not show that the continuance requested by the defendant's attorney was obtained against the defendant's wishes. Rather, it appears that the defendant in Abrams did not assert a violation of the speedy trial rule until after the continuance had been obtained and the statutory speedy trial period had expired. Therefore, although Abrams contains a statement supporting the state's position that Taylor's right to a speedy trial was waived by his attorney's request for a continuance, that decision is not dispositive of the precise issue raised by this appeal.

Our research has revealed two out-of-state cases that address the narrow issue presented here. In Townsend v. Superior Court, 15 Cal.3d 774, 126 Cal.Rptr. 251, 543 P.2d 619 (1975), the supreme court of California held that a defendant's counsel effectively waived his client's statutory right to a speedy trial by obtaining continuances of the defendant's trial date over the defendant's specific objections. The court stated that the constitutional right to a speedy trial is "undeniably 'as fundamental as any of the rights secured by the Sixth Amendment' " and "counsel may not waive this constitutional right over his client's objections." 126 Cal.Rptr. at 256, 543 P.2d at 624. However, the court distinguished the Sixth Amendment right from the statutory implementation of the constitutional right requiring trial within 60 days and held that the latter "cannot properly be termed 'fundamental' ... and therefore beyond counsel's primary control." Id. Noting that the case presented a confrontation between the "right to a speedy trial constitutionally guaranteed and statutorily implemented," and the right to competent, adequately prepared counsel, the court concluded that the defendant's right to be represented by counsel who was prepared for trial outweighed his right to have a trial within the statutory period. Id., 126 Cal.Rptr. at 257, 258, 543 P.2d at 625, 626. Similarly, in People v. Carr, 9 Ill.App.3d 382, 292 N.E.2d 492 (1972), an Illinois appellate court held that a defendant's right to a speedy trial was not violated where a continuance was granted at his attorney's request but over the defendant's strenuous objections. As in Townsend, the Illinois court's holding was based on the defendant's entitlement to effective assistance of counsel and the fact that the defendant's counsel was not prepared to go to trial at the time the case was originally scheduled.

We adopt the rationale stated in Townsend and Carr. Here, appellant's counsel requested a continuance because one of the state's key witnesses, who had originally stated that she did not see the shooting, changed to a new story stating that she saw the shooting and that someone other than Taylor fired the shot. Taylor's counsel moved for a continuance on the ground that he needed time to pursue questions raised by this new story. Fla.R.Crim.P. 3.191(f)(4) permits an extension of time past the speedy trial period where the accused shows a necessity for delay "grounded on developments which could not have been anticipated and which [would] materially affect the trial." We conclude that in light of counsel's representations, it was clearly within the trial court's discretion to determine that Taylor's counsel made the showing required by rule 3.191(f)(4). Thus, the court properly granted the extension of time and did not violate Taylor's right to be tried within the speedy trial period prescribed by rule 3.191(a). Furthermore, Taylor's constitutional right to a speedy trial was not violated because the trial extension was reasonable and necessary to protect his right to competent, adequately prepared counsel. We affirm the first point.

The brief next argues that the trial court erred in denying Taylor's motion for judgment of acquittal on the state's charge of robbery. ⁵ It contends...