MARY P. BLACKSTOCK, PETITIONER,
v.
THE HONORABLE ROBERT H. NEWMAN, AS JUDGE OF THE CIRCUIT COURT OF THE 11TH, JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA, RESPONDENT
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Petitioner sought a writ of prohibition to prevent her trial from proceeding beyond the speedy trial statutory period. The court held that petitioner's request for time to obtain counsel constituted a waiver of her speedy trial rule rights, and therefore the constitutional speedy trial guarantee (measured by reasonableness and prejudice) applied instead of the bright-line statutory rule.
Petitioner's request for time to employ an attorney constituted a motion for continuance that waived her speedy trial rule rights. The court held that the speedy trial rule is procedural only, not a constitutional right, and once waived, the constitutional speedy trial period—measured by reasonableness and prejudice tests rather than specific day counts—applies.
[1] A defendant's request for time to employ an attorney constitutes a motion for continuance, waiving speedy trial rule rights.
[2] Any defense request to postpone a case, regardless of its label, operates as a motion for continuance waiving speedy trial rule rights.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Any defense request to postpone a case for any period of time, whatever called, constitutes a motion for a continuance waiving speedy trial rule rights under Butterworth.”
Establishes the bright-line rule that any defense continuance request waives statutory speedy trial rights.
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Join FLexlaw to unlock all legal intelligencePetitioner was arrested and released on bail on December 20, 1983. She appeared for arraignment on January 9, 1984 without counsel and requested time …
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HENDRY, Judge.
Petitioner seeks a writ of prohibition to prevent the Circuit Court for Dade County from bringing her to trial beyond the speedy trial time period.1
Petitioner was arrested, taken into custody and released on bail on December 20, 1983. She appeared for arraignment on January 9, 1984 without counsel, although she was not indigent. She requested that she be permitted to obtain counsel; the request was granted with instructions that she report back to the court on her efforts to obtain counsel. No trial date was set at that time.
On January 12, 18, 20 and 25 petitioner appeared before the trial court upon continuing instructions to report on her efforts to obtain counsel. No trial date was set.
On February 1 petitioner appeared before the court, with counsel; she was arraigned, pled not guilty and for the first time a trial date was set, which was April 9, 1984. A total of 23 days elapsed between petitioner’s first required appearance and her arraignment, during which time she sought and obtained counsel.
On April 3, 1984 petitioner made a motion to continue the trial set for April 9. The motion was granted on the ground that the state attorney’s office was not available to attend petitioner’s scheduled deposition prior to trial. The continuance was charged to the state. The trial was reset for May 21, 1984.
On May 21 the trial was continued, on the state’s motion, to May 23.
On May 23 trial was continued to May 29.
On May 29 the trial was continued indefinitely from day to day, either at the state’s request or on the court’s own motion due to a congested docket, or both. On June 7, 1984 a conference was held in the court’s chambers to discuss the setting of a trial date. Petitioner’s counsel again announced a readiness for trial at anytime up to and including June 17, 1984.
On June 7 the court reset the trial date to July 10, 1984, over objections of petitioner’s counsel.
The trial court took the position that petitioner had waived her rights under the speedy trial rule when she requested time to find an attorney prior to arraignment.
We agree with the state’s contention that the request of petitioner for time to employ an attorney constituted a motion for continuance waiving her speedy trial rule rights under Butterworth v. Fluellen, 389 So. 2d 968 (Fla.1980). Any defense request to postpone a case for any period of time, whatever called, constitutes a motion for a continuance waiving speedy trial rule rights under Butterworth. State v. Brown, 412 So. 2d 448 (Fla. 5th DCA 1982) (delay of one day still constituted “continuance” waiving speedy trial rule rights.)
By this decision, we do not force appellant to choose between two sixth amendment rights, the right to a speedy trial and the right to counsel, as she asserts. The speedy trial rule is a procedural device only and not a constitutional right. Once the speedy trial rule has been waived, it is supplanted by the constitutional speedy trial period which is measured by tests of reasonableness and prejudice, not specific numbers of days. Brownlee v. State, 427 So. 2d 1106 (Fla. 3d DCA 1983); Gallego v. Purdy, 415 So. 2d 166 (Fla. 4th DCA 1982).
The writ of prohibition is denied and this cause is remanded to the trial court for further proceedings.
. Rule 3.191(a)(1) and (4), Fla.R.Crim.P.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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State v. Naveira, 873 So. 2d 300 (Fla. 2004)…ed in the rule, “[t]he constitutional speedy trial period is measured by tests of reasonableness and prejudice, not specific numbers of days.” Fonte v. State, 515 So. 2d 1036, 1038 n. 2 (Fla. 3d DCA 1987). As the court found in Blackstock v. Newman, 461 So. 2d 1021 (Fla. 3d DCA 1985), discussing a related issue: By this decision, we do not force appellant to choose between two sixth amendment rights, the right to a speedy trial and the right to counsel, as she asserts. The speedy trial rule is a procedural de…
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State v. Frazee, 617 So. 2d 350 (Fla. 4th DCA 1993)…use he would be fairly well exhausted by that time. This rule has been construed to mean that any defense request to postpone a case is a motion for a continuance waiving speedy trial rights regardless of its characterization. Blackstock v. Newman, 461 So. 2d 1021 (Fla. 3d DCA), rev. denied, 467 So. 2d 999 (Fla.1985); accord State v. (Buster) Brown, 412 So. 2d 448 (Fla. 6th DCA 1982); State v. (Michael) Brown, 394 So. 2d 218 (Fla. 5th DCA 1981). But more in point are State v. McCoy, 369 So. 2d 1027 (Fla. 3d D…
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Albert Banks v. State, 691 So. 2d 490 (Fla. 4th DCA 1997)…da, 436 So. 2d 1109 (Fla. 4th DCA 1983); Colby v. [*492] McNeill, 695 So. 2d 115 (Fla. 3d DCA), rev. denied, 604 So. 2d 487 (Fla.1992); Fonte v. State, 515 So. 2d 1036 (Fla. 3d DCA 1987), rev. denied, 525 So. 2d 878 (Fla.1988); Blackstock v. Newman, 461 So. 2d 1021, 1022 (Fla. 3rd DCA), rev. denied, 467 So. 2d 999 (Fla. 1985); State v. Fraser, 426 So. 2d 46 (Fla. 5th DCA 1982), rev. denied, 436 So. 2d 98 (Fla.1983); State v. Brown, 412 So. 2d 448 (Fla. 5th DCA 1982). See also Rubiera v. Dade County ex rel. Ben…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Honorable Robert A. Butterworth v. Fluellen, 389 So. 2d 968 (Fla. 1980)
- Gallego v. The Honorable H. Mark Purdy as Judge of the Cir. Court of the 17th Jud. Cir. in & for Broward Cnty., 415 So. 2d 166 (Fla. 4th DCA 1982)
- Brownlee v. State, 427 So. 2d 1106 (Fla. 3d DCA 1983)
- State v. Buster Dean Brown, 412 So. 2d 448 (Fla. 5th DCA 1982)