MICHAEL DALE JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Dale Jones appealed the denial of his motion for postconviction relief alleging ineffective assistance of counsel for failing to move for discharge upon expiration of the speedy trial period. The court reversed and remanded, holding that Jones's motion was legally insufficient but could be refiled with proper allegations under Spera v. State.
The court held that a motion for continuance made after the speedy trial period has run does not waive a defendant's right to demand speedy trial rights. However, Jones's motion for postconviction relief was legally insufficient because it failed to allege that he was ready for trial on the 175th day and that he would not have been tried during the fifteen-day recapture period.
[1] A request for a continuance made after the speedy trial period has expired does not waive a defendant's right to demand speedy trial.
[2] A motion for postconviction relief alleging ineffective assistance of counsel for failure to move for discharge upon expiration of the speedy trial period must allege tha…
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“A request for a continuance after a speedy trial period has run but before moving for discharge does not affect a defendant's right to demand his speedy trial rights.”
Establishes the controlling legal standard that continuances requested after the speedy trial period has expired do not waive speedy trial rights.
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Join FLexlaw to unlock all legal intelligenceJones was convicted and filed a motion for postconviction relief raising three grounds. He appealed the denial of one ground: that trial counsel was i…
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Michael Dale Jones appeals the denial of his motion for postconviction relief. We reverse and remand for further proceedings.
In his motion, Jones raised three grounds, but in this appeal he addresses the denial of only one of those grounds.1 That ground was that his trial counsel was ineffective for failing to move for discharge upon expiration of the speedy trial period. The trial court ruled that Jones failed to show that counsel’s performance was deficient because the record reflects that counsel moved for a continuance, which waived Jones’ speedy trial rights.
Jones argues that the motion for continuance was made after the speedy trial period ran, and therefore, it did not affect his right to demand his speedy trial rights. Jones is correct. See Nelson v. State, 993 So.2d 1072, 1074 (Fla. 4th DCA 2008) (“A request for a continuance after a speedy trial period has run but before moving for discharge does not affect a defendant’s right to demand his speedy trial rights.” (citing State v. Leslie, 699 So.2d 832 (Fla. 3d DCA 1997))).
The State responds that Jones’ motion failed to show either deficient performance of trial counsel or prejudice because it failed to allege that he was ready for trial on the 175th day and that he would not have been tried during the fifteen-day recapture period. Jones’ motion is in fact legally insufficient in these respects. Nevertheless, Spera v. State, 971 So.2d 754 (Fla.2007), requires that we reverse and remand with directions that this claim be stricken with leave to amend within a specific period of time. See Smith v. State, 988 So.2d 693 (Fla. 2d DCA 2008) (reversing summary denial of two grounds of Smith’s motion for postconviction relief based on legal insufficiency because Smith failed to allege that the State could not have brought him to trial within *1284the recapture period; remanding pursuant to Spera).
Accordingly, we reverse the order denying ground three and remand for further proceedings consistent with this opinion and Spera. We affirm the subsequent order denying grounds one and two of Jones’ motion after an evidentiary hearing.
Affirmed in part; reversed in part; and remanded with directions.
FULMER, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.
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Citator
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- State v. Norris H. Leslie, 699 So. 2d 832 (Fla. 3d DCA 1997)
- Smith v. State, 988 So. 2d 693 (Fla. 2d DCA 2008)
- Rosier v. State, 993 So. 2d 1072 (Fla. 1st DCA 2008)
- Nelson v. State, 993 So. 2d 1072 (Fla. 4th DCA 2008)