WILLIAM ROBERTS, APPELLANT,
v.
THE HONORABLE MAXINE COHEN LANDO, JUDGE OF THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA, APPELLEE
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William Roberts appealed the denial of his petition for a writ of prohibition challenging the county court's jurisdiction to proceed in his criminal case. The Third District Court of Appeal reversed, finding that the trial court erred in charging a defense continuance to Roberts when his counsel did not receive proper notice of trial, thereby entitling him to discharge based on the state's failure to bring him to trial within the speedy trial period.
The court held that the defendant rebutted the presumption of notice by presenting sworn testimony from counsel and the bondsperson that they did not receive the trial notice, and that because counsel did not receive notice, the defendant and his counsel were continually available for trial. Therefore, the trial court erred in charging the continuance to the defendant, and the defendant is entitled to discharge from the case.
[1] A presumption of mailing and receipt of notice can be rebutted by sworn testimony that the notice was not received.
[2] A defendant is entitled to discharge when the state fails to bring the defendant to trial within the speedy trial period, and a continuance should not be charged to the d…
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Join FLexlaw to unlock all legal intelligence“defendant rebutted the presumption by presenting the sworn testimony of his counsel and bondsperson that they did not receive the notice, that they had received all other computer-generated notices, and that they had appeared for the hearings for which notices were properly computer generated”
Establishes that the defendant overcame the presumption of notice through competent evidence
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Join FLexlaw to unlock all legal intelligenceRoberts appeared for trial without his counsel and sought discharge based on the state's failure to bring him to trial during the speedy trial window …
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PER CURIAM.
William Roberts appeals the circuit court’s denial of a petition for writ of prohibition precluding the county court from exercising further jurisdiction in a pending criminal case.
We reverse. Roberts contended that the county court erred in denying his motion for discharge based on the state’s failure to bring him to trial during the speedy trial “window” period; he argued that the court should not have charged a defense continuance when defendant appeared for trial without his counsel. See Fla.R.Crim.P. 3.191(k).
At the hearing on the discharge motion, the state asserted that defendant’s counsel was unavailable for trial.
Defendant contended that neither his counsel nor the bondsperson had received notice of the trial date. The state presented evidence that the customary practice of the clerk’s office was to mail notices to all persons listed on the praecipe, whether computer generated or handwritten by the clerk.
The trial court found that the evidence triggered the presumption that the clerk’s office mailed the notice and that the attorney and bondsperson received the notice of trial date. Although that testimony triggered the presumption of mailing and receipt, see Brown v. Giffen Indus., Inc., 281 So. 2d 897 (Fla.1973) (on rehearing); Brake v. State, Unemployment Appeals Comm’n, 473 So. 2d 774 (Fla.3d DCA 1985); Milros-Sans Souci Inc. v. Dade County, 296 So. 2d 545 (Fla.3d DCA 1974), cert. denied, 310 So. 2d 744 (Fla.1975), defendant rebutted the presumption by presenting the sworn testimony of his counsel and bondsperson that they did not receive the notice, that they had received all other computer-generated notices, and that they had appeared for the hearings for which notices were properly computer generated.
Thus, defendant presented sufficient and competent evidence that overcomes the presumption and establishes that the attorney did not receive notice. Because counsel did not receive notice, defendant and his counsel were continually available for trial. See State ex rel. Kennedy v. McCauley, 265 So. 2d 547 (Fla. 4th DCA 1972).
Thus, the court erred in charging the continuance to defendant, and he is entitled to issuance of the writ of prohibition and discharge from the case. See Obanion v. State, 496 So. 2d 977 (Fla. 3d DCA 1986), review denied, 504 So. 2d 768 (Fla.1987); cf. State v. Morgan, 471 So. 2d 199, 201 (Fla. 2d DCA 1985) (defendant waived speedy trial rights when counsel failed to appear due to family illness).
Accordingly, we reverse the order.
Reversed and remanded. .
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Cliff Ross Dixon v. State, 901 So. 2d 384 (Fla. 3d DCA 2005)…ixon did not appear for trial as Dixon’s counsel was notified by the clerk’s office that the trial had been canceled. It is customary for the clerk’s office to mail notices and there is a presumption that such notices are received. Roberts v. Lando, 652 So. 2d 1226 (Fla. 3d DCA 1995). Defense counsel had the right to rely on the notice. It was through no fault of Dixon that the notice of cancellation was sent. Both he and his counsel were unaware of the sounding date, and because they did not appear, the bench…
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Metro. Mortg. Co. of Miami v. Ivor H. Rose (Fla. 3d DCA 2022)
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State v. Costanzo, 802 So. 2d 515 (Fla. 3d DCA 2001)…PER CURIAM. Affirmed. See Roberts v. Lando, 652 So. 2d 1226 (Fla. 3d DCA 1995) (holding that where counsel did not receive notice of trial date, defendant and his counsel were continually available for trial and [*516] continuance should not have been charged to defendant for purposes of speedy trial).…
Authorities Cited
- Brown v. Giffen Indus., Inc., 281 So. 2d 897 (Fla. 1973)
- Bertrand Obanion v. State, 496 So. 2d 977 (Fla. 3d DCA 1986)
- Milros-Sans Souci, Inc. v. Dade Cnty., 296 So. 2d 545 (Fla. 3d DCA 1974)
- Brake v. State, 473 So. 2d 774 (Fla. 3d DCA 1985)
- Leiseder v. State, 265 So. 2d 547 (Fla. 2d DCA 1972)
- The State of Fla. ex rel. Willie Preston Kennedy, Jr. v. McCAULEY, 265 So. 2d 547 (Fla. 4th DCA 1972)
- State v. Morgan, 471 So. 2d 199 (Fla. 2d DCA 1985)
- Meaders Clifton de Loache v. de Loache, 310 So. 2d 744 (Fla. 1975)
- Milros-Sans Souci, Inc. v. Dade Cnty., 310 So. 2d 744 (Fla. 1975)