Zabrani v. Cowart, 86-910
| Decision Date | 25 November 1986 |
| Docket Number | No. 86-910,86-910 |
| Citation | 502 So.2d 1257,11 Fla. L. Weekly 2468 |
| Parties | 11 Fla. L. Weekly 2468 Iqbal ZABRANI, Petitioner, v. The Honorable Edward D. COWART, Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Criminal Division, Respondent. |
| Court | Florida District Court of Appeals |
Mark King Leban, Stanford Blake, Miami, for petitioner.
Janet Reno, State Atty., and Joel D. Rosenblatt, Asst. State Atty, for respondent.
Jim Smith, Atty. Gen. and Charles M. Fahlbusch, Asst. Atty. Gen., for the State of Fla. as intervenor.
Before SCHWARTZ, C.J., and BARKDULL, HENDRY, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
Zabrani was taken into custody on a first degree murder charge on July 11, 1984. After the state failed to proceed against him, the action was at first dismissed, but he was rearrested on April 6, 1985. On April 24, 1985, more than 180 days after the first arrest, he moved for discharge under the speedy trial rule, Fla.R.Crim.P. 3.191. The trial judge has twice denied the motion on the ground that the grace period provision of Fla.R.Crim.P. 3.191(i)(4), as amended effective January 1, 1985 1 was applicable so that Zabrani was not entitled to the relief sought. The defendant now seeks prohibition, 2 correctly asserting that McKnight v. Bloom, 490 So.2d 92 (Fla. 3d DCA 1986), which held on indistinguishable facts that the pre-1985 date of arrest controls the determination of the applicable version of the speedy trial rule, requires his discharge. Upon en banc consideration of the issue involved in McKnight, we reach the contrary conclusion that the 1985 date of the motion for discharge is determinative and therefore deny prohibition.
There is no dispute that the speedy trial rule is entirely procedural in nature, see State ex rel. Maines v. Baker, 254 So.2d 207 (Fla.1971); Kanter v. State, 265 So.2d 742 (Fla. 3d DCA 1972), and that the version in effect at the time of the proceeding in question controls the result. State v. Jackson, 478 So.2d 1054 (Fla.1985); Lowe v. Price, 437 So.2d 142 (Fla.1983). Indeed, the very order effecting the amendments to the rule now in question provides that they "shall govern all proceedings within their scope after 12:01 A.M. January 1, 1985." The Florida Bar Re: Amendment to Rules--Criminal Procedure, 462 So.2d 386 (Fla.1984). The problem before us, however, is the determination of the relevant "proceeding" or, otherwise stated, the "operative event" to which the rule is to be applied. See Hood v. State, 415 So.2d 133 (Fla. 5th DCA 1982); Arnold v. State, 429 So.2d 819 (Fla. 2d DCA 1983); Holmes v. Leffler, 411 So.2d 889 (Fla. 5th DCA 1982), pet. for review denied, 419 So.2d 1200 (Fla.1982); Jackson v. Green, 402 So.2d 553 (Fla. 1st DCA 1981).
State v. Green, 473 So.2d 823, 824 (Fla. 2d DCA 1985), which was followed in McKnight, held that the key factor was "[t]he event which began the running of speedy trial time[,] ... the taking of defendant into custody on June 25, 1984." In our view, this analysis is incorrect. While the event which triggers the speedy trial time should be decisive in computing the length of that period--which was the issue in Arnold and Jackson, 3 upon which Green relies--the ultimate question in this case is far different. It is the effect to be given a motion for discharge made after the period has already run: whether, as under the old rule, the defendant is to be released forthwith, or, as under the new one--which was specifically enacted expressly to obviate the perceived abuse of immediate discharge see Fla.R.Crim.P. 3.191 committee note (1984), reprinted in 33 F.S.A. Rule 3.191, at 191 (West Supp.1986)--the state is given an opportunity then to try him. 4 Merely to pose the question in this way is, we think, to answer it adverse to Zabrani's position: the "operative event" must be the motion itself. Since there was plainly no "right to discharge" until the defendant moved for it, the consequences of filing that motion must be determined by the rule on the date it was made. Lowe, 437 So.2d at 144.
In accordance with this conclusion, McKnight v. Bloom, 490 So.2d 92 (Fla. 3d DCA 1986), 5 is overruled and the petition for prohibition is denied. 6
We certify that this decision is in conflict with State v. Green, 473 So.2d 823 (Fla. 2d DCA 1985), and that it involves the question of great public importance we certified in McKnight:
Whether Fla.R.Crim.P. 3.191(i)(4) is applicable to a criminal case wherein the defendant is taken into custody prior to January 1, 1985, 12:01 A.M., the effective date of the above-stated rule.
Petition denied, conflict and question certified.
I would decline to conduct an en banc hearing in this cause under Florida Appellate Rule 9.331(a) [hereinafter Rule 9.331(a) ] and would return the cause for a decision on the merits to the three-judge panel of this court originally assigned to decide this matter. I think it entirely inappropriate to invoke our extraordinary en banc jurisdiction in this case, particularly in the unconstitutional fashion in which it is accomplished herein.
By today's decision, the court assumes en banc jurisdiction under Rule 9.331(a) to overrule three prior panel decisions of this court which have certified to the Florida Supreme Court the exact question which the en banc court certifies today, two of which decisions are presently pending on further review before the Florida Supreme Court. State v. Mortimer, 490 So.2d 93 (Fla. 3d DCA 1986); 1 McKnight v. Bloom, 490 So.2d 92 (Fla. 3d DCA 1986) (); State v. Parvis, 487 So.2d 1181 (Fla. 3d DCA 1986) (). Although it is proper in extraordinary cases for this court to convene an en banc hearing to overrule a prior decision of this court, In re Rule 9.331, 416 So.2d 1127, 1128 (Fla.1982), I think it totally inappropriate to do so in this case for three reasons.
First, I do not believe that we have the constitutional authority to overrule a prior decision of this court where, as here, the decision is pending on further review before the Florida Supreme Court. Although the state has sought further review in two of the above-stated cases [McKnight and Parvis ], there is now nothing for the Supreme Court to review as the decisions before it are, by today's decision, null and void. Not even the litigants themselves are bound thereby because the decisions were never made final by the Supreme Court, through an affirmance or denial of review, prior to our overruling decision today. Moreover, the state is no longer an aggrieved party by these overruled decisions and therefore has no standing to pursue its pending petitions for review before the Florida Supreme Court.
The Supreme Court, then, is in the untenable position of reviewing two Third District Court decisions which have no force or effect and which the state has no standing to seek review thereon. Stated differently, we have mooted the Florida Supreme Court's entire proceedings by overruling the very cases which the Court has assumed jurisdiction to review. Plainly, this state of affairs is intolerable as this court, without doubt, has no constitutional authority to tamper with, much less destroy, the jurisdiction of the Florida Supreme Court to review cases presently pending before it. I, therefore, dissent from the court's assumption of en banc jurisdiction to accomplish what I consider to be an unconstitutional result. See State v. Meneses, 392 So.2d 905 (Fla.1981).
Second, the appropriate time, in my view, for this court to have assumed en banc jurisdiction to decide this issue was in McKnight v. Bloom, 490 So.2d 92 (Fla. 3d DCA 1986), and not in this case. Upon a rehearing en banc in McKnight, this court could have assumed en banc jurisdiction on the ground that the case was one of "exceptional importance," Fla.R.App.P. 9.331(a), and issued the opinion which it announces today. Instead, the court, as it had a right to do, chose to allow the McKnight decision to stand and the question presented to be certified to the Florida Supreme Court for final resolution. Indeed, this court took the same position in two subsequent cases which followed McKnight and certified the same question to the Florida Supreme Court. State v. Parvis, 487 So.2d 1181 (Fla. 3d DCA 1986); State v. Mortimer, 490 So.2d 93 (Fla. 3d DCA 1986).
Having chosen this pattern of resolving the question presented, I think it most inappropriate for the court to break that pattern and walk away from decisions which we have already certified and which are currently pending in the Florida Supreme Court. If a majority of the court disagreed with the McKnight decision, it should have granted rehearing en banc on that case, rather than have allowed the decision to stand and to be certified, and thereafter to be followed and further certified in two subsequent cases. To break that pattern not only destabilizes the law of this district, it also creates the impression that our panel decisions are like one-way railway tickets, good for that ride and that ride only. Such a result, in my view, tends to defeat the entire purpose behind the en banc rule which "is designed to help the district courts avoid conflict, assure harmonious decisions within [our] geographic boundaries, and develop predictability of the law within [our] jurisdiction." Chase Federal Savings & Loan Association v. Schreiber, 479 So.2d 90, 93 (Fla.1985), cert. denied, 476 U.S. 1160, 106 S.Ct. 2282, 90 L.Ed.2d 723 (1986).
Third, the entire en banc exercise which the court undertakes today is, to my mind, rather pointless. As previously stated, this court on three prior occasions has decided the issue which the en banc court decides today and on each occasion has...
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