THE STATE OF FLORIDA, APPELLANT,
v.
WALDO TOYOS, APPELLEE
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Florida appeals the trial court's order discharging a criminal defendant under the speedy trial rule. The court reverses, holding that the defendant forfeited speedy trial rights through his counsel's acquiescence to a co-defendant's continuance motion and failure to inform the court of his readiness for trial.
The court reverses the discharge order, holding that the defendant was not continuously available for trial between June 2, 1980, and December 1, 1980 because his counsel's acquiescence to the co-defendant's continuance motion, combined with his failure to affirmatively inform the court of defendant's readiness and desire to proceed separately, constituted a waiver of speedy trial rights.
[1] A defendant is not continuously available for trial if their counsel fails to immediately inform the court of their opposition to a co-defendant's continuance motion and…
[2] A defendant's counsel's acquiescence to a co-defendant's motion for continuance, without taking affirmative action to inform the court of the desire to proceed to trial,…
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Join FLexlaw to unlock all legal intelligence“we rely on the following cases, collectively, as authority for our holding that defendant was not continuously available for trial between June 2, 1980, and December 1, 1980”
Establishes the court's central holding that the defendant lost speedy trial protection by failing to be continuously available
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Join FLexlaw to unlock all legal intelligenceDefendant was arrested on March 28, 1980, beginning a 180-day speedy trial period. On June 2, 1980, when the case was called for trial, defendant's co…
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PER CURIAM.
The state appeals an order discharging defendant pursuant to the speedy trial rule, Florida Rule of Criminal Procedure 3.191 (1980). We agree that under no view of the facts herein can the order be sustained.1 The salient events are that: 1. On March 28, 1980, defendant was arrested and the applicable 180-day speedy trial period commenced to run.
2. On June 2, 1980, defendant’s counsel was “down the hall” when the case was called for trial. Counsel for a co-defendant, purporting to speak for all the defendants, moved for a continuance. The court charged the continuance to all defendants.
3. Defendant’s counsel thereafter failed to immediately inform the court that he opposed the co-defendant’s motion for corn tinuance and that defendant was indeed ready for trial, and he did not move to sever his client’s trial from that of the co-defendants.
4. On August 11, 1980, when the case was called for the second time, defendant’s counsel (while refusing to waive speedy trial) still did not inform the court that counsel for the co-defendant had been without authority or permission to move for continuance on behalf of defendant.
5. On November 26, 1980, defendant filed a motion for discharge. On that same date, however, he also filed two motions seeking to invoke additional discovery to include the statements of the state’s material witnesses.
6. On December 1, 1980, defendant filed a first demand for speedy trial.
The trial court heard the motion for discharge on December 11, 1980, and entered a written order of discharge on December 18, 1980. In reversing the order of discharge, we rely on the following cases, collectively, as authority for our holding that defendant was not continuously available for trial between June 2, 1980, and December 1, 1980. See Turner v. State ex rel. 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 court of his desire to go to trial); State v. Exposito, 327 So. 2d 836 (Fla. 3d DCA 1976) (where counsel for defendant is “down the hall” when case is called for trial, defendant is not continuously available for trial); State v. Kelley, 322 So. 2d 581 (Fla. 1st DCA 1975) (speedy trial waived where defendant’s attorney consents to or acquiesces in a continuance of the trial).
Reversed.
. We previously reversed the order granting discharge by opinion filed October 6, 1981, wherein appellee was not represented by counsel. The Florida Supreme Court found that appellee was denied effective assistance of appellate counsel and directed us to grant a new and expedited appeal. Our opinion was withdrawn from the bound volume of the Southern Reporter. See 404 So. 2d 790.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Williams v. State, 757 So. 2d 597 (Fla. 5th DCA 2000)…e was not continuously available for trial during critical 180-day period; defendant failed to appear at the date set for his trial and moved for discovery as to the confidential informant, thus indicating his unreadiness for trial); State v. Toyos, 448 So. 2d 1135 (Fla. 3d DCA 1984) (defendant was not continuously available for trial where a continuance was requested purportedly for all defendants and counsel for the defendant failed to inform the court that he opposed this continuance). The state also argue…
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The Honorable Jonathan T. Colby v. McNEILL, 595 So. 2d 115 (Fla. 3d DCA 1992)…ant is not ready for trial on the scheduled trial date and is thus unavailable for trial during the speedy trial period under Fla. R.Crim.P. 3.191(d)(3)(iii), (e). See, e.g., State ex rel. Butler v. Cullen, 253 So. 2d 861 (Fla.1971); State v. Toyos, 448 So. 2d 1135 (Fla. 3d DCA 1984). The only exception to this rule arises where the defendant is not ready for trial and consequently requests a continuance because the state has impeded the preparation of the defense by inexcusable delays in providing discovery m…
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Westlake v. The Honorable Charles E. Miner, 460 So. 2d 430 (Fla. 1st DCA 1984)…inuance 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 purpose of preserving her right to speedy trial. Machado…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Honorable Jack M. Turner v. State ex rel. Michael J. Pellerin, 272 So. 2d 129 (Fla. 1973)
- State v. Kelley, 322 So. 2d 581 (Fla. 1st DCA 1975)
- Fidel Gonzalez v. State, 447 So. 2d 381 (Fla. 3d DCA 1984)
- Penelope Gay Sheppard v. Ramada INN, Inc., 327 So. 2d 836 (Fla. 3d DCA 1976)
- State v. Exposito, 327 So. 2d 836 (Fla. 3d DCA 1976)