FIDEL GONZALEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Fidel Gonzalez pleaded nolo contendere to attempted first-degree murder and kidnapping while reserving the right to appeal the denial of his motion for discharge under Florida's speedy trial rule. The Third District Court of Appeal affirmed the trial court's denial, holding that Gonzalez waived his speedy trial rights by acquiescing to a co-defendant's continuance request without objection or demand for trial.
The court held that Gonzalez waived his speedy trial rights by acquiescing to the co-defendant's continuance request, and the trial court properly denied the motion for discharge. The court also held that the speedy trial rule does not apply to probation revocation proceedings, which are sentencing functions rather than trials.
[1] A defendant's speedy trial rights are waived when counsel acquiesces to a co-defendant's motion for continuance and takes no affirmative action to assert the right to a s…
[2] A defendant's awareness of and accession to a co-defendant's motion for continuance, without objection or a motion to sever, can be considered attributable to the accused…
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Join FLexlaw to unlock all legal intelligence“Acquiescence to a co-defendant's motion for continuance operates as a waiver of speedy trial rights where, as here, counsel is apprised of a co-defendant's motion for continuance, participates in subsequent discovery and takes no affirmative action that would put the trial court on notice of a desire to go to trial within the 180-day rule period.”
Establishes the legal standard for waiver of speedy trial rights through acquiescence to co-defendant's continuance.
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Join FLexlaw to unlock all legal intelligenceGonzalez was charged with attempted first-degree murder and kidnapping, and also faced a probation violation based on the same conduct. Counsel for a …
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PER CURIAM.
Fidel Gonzalez entered a plea of nolo contendere to the charge of attempted first degree murder and kidnapping. A similar plea was entered for an affidavit of violation of probation alleging the foregoing substantive crimes. Gonzalez reserved his right to appeal the trial court’s denial of his motion for discharge under the speedy trial rule, Fla.R.Crim.P. 3.191. We affirm.
The record reflects that counsel representing a co-defendant appeared in court and requested a continuance stating that counsel for Gonzalez had no objection. The trial court granted the co-defendant’s motion for continuance and charged a continuance to all defendants. The record reflects that at the time the request for continuance was made by the co-defendant counsel for Gonzalez was not in court. During the course of the hearing on the motion for discharge counsel for Gonzalez observed,
I indicated to the court that it was no problem with a continuance at all since obviously I had just been appointed six days prior to that time and obviously it was literally impossible to depose twenty-four witnesses in a six-day period where two days of the six-day period were weekends. In my opinion at the most I acceded to [co-defendant's counsel’s] request for continuance not assuming the court charged that one to me as a result of my accession to [co-defendant's counsel’s] request for continuance.
The record is therefore clear that counsel for Gonzalez was aware of the continuance and acceded to it.
Under the foregoing facts we believe this case is controlled by Florida Rule of Criminal Procedure 3.191(d)(3)(H) which provides that a motion for discharge shall be granted unless it is shown that the failure to hold the trial is attributable to the accused, a co-defendant in the same trial, or their counsel. The delay in this case is attributable to the co-defendant’s need for further discovery. Gonzalez made no objection to the continuance of his co-defendant and did not move to sever; nor did he demand a speedy trial.
Acquiescence to a co-defendant’s motion for continuance operates as a waiver of speedy trial rights where, as here, counsel is apprised of a co-defendant’s motion for continuance, participates in subsequent discovery and takes no affirmative action that would put the trial court on notice of a desire to go to trial within the 180-day rule period. See Pieters v. State, 402 So. 2d 531 (Fla.3d DCA 1981); State v. Kelley, 322 So. 2d 581 (Fla. 1st DCA 1975). There is no claim that the defendant’s constitutional speedy trial rights were violated.
The speedy trial rule does not apply to a proceeding to revoke probation. Young v. State, 305 So. 2d 307 (Fla. 3d DCA 1974). A probation revocation hearing is a sentencing function, not a trial. State v. Jones, 425 So. 2d 178 (Fla. 1st DCA 1983). There is therefore no merit to the claim of speedy trial violations involving the revocation of probation.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Saunders v. State, 837 So. 2d 433 (Fla. 2d DCA 2002)…dispose of the violation of probation nor does the trial court’s failure to have done so deprive it of jurisdiction. Neither the speedy trial rule nor the Interstate Agreement on Detainers applies to a violation of probation. See Gonzalez v. State, 447 So. 2d 381 (Fla. 3d DCA 1984); Irby v. State, 427 So. 2d 367 (Fla. 2d DCA 1983). Nor does the probation statute afford any relief to a prisoner against whom a detain-er has been lodged but who has not been arrested for the violation of probation. See § 948.06(…
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State v. Waldo Toyos, 448 So. 2d 1135 (Fla. 3d DCA 1984)…. Pellerin, 272 So. 2d 129 (Fla.1973) (where defendant sought further discovery two days after moving for speedy trial, defendant failed to meet requirement that he be prepared for trial at time of filing motion for speedy trial); Gonzalez v. State, 447 So. 2d 381 (Fla. 3d DCA 1984) (acquiescence to co-defendant’s motion for continuance operates as waiver of speedy trial where counsel is aware of co-defendant’s motion, participates in subsequent discovery, and takes no affirmative action to inform the trial c…
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Westlake v. The Honorable Charles E. Miner, 460 So. 2d 430 (Fla. 1st DCA 1984)…rying defendants together, which justified the continuance under Rule 3.191(f).3 Neither can it be said that petitioner somehow acquiesced in her codefendant’s motion for continuance thereby waiving her right to speedy trial. See Gonzalez v. State, 447 So. 2d 381 (Fla. 3d DCA 1984); State v. Toyos, 448 So. 2d 1135 (Fla. 3d DCA 1984). On the contrary, the record reflects that petitioner promptly and expressly objected to the continuance requested by her codefendant and moved for severance partly for the purpo…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Kelley, 322 So. 2d 581 (Fla. 1st DCA 1975)
- State v. Jones, 425 So. 2d 178 (Fla. 1st DCA 1983)
- Young v. State, 305 So. 2d 307 (Fla. 3d DCA 1974)
- Pieters v. State, 402 So. 2d 531 (Fla. 3d DCA 1981)