JOSE GUERRERO LOZANO, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jose Guerrero Lozano appeals the summary denial of his Rule 3.850 motion for ineffective assistance of counsel based on his trial counsel's failure to assert speedy trial rights. The court affirmed the denial regarding the procedural speedy trial rule but reversed and remanded regarding the constitutional speedy trial right, which the postconviction court had failed to address.
The court affirmed the denial of the claim regarding the procedural speedy trial right, as counsel's continuance requests waived that right. However, the court reversed and remanded because the postconviction court failed to address whether counsel was ineffective for failing to assert the constitutional speedy trial right, which survives waiver of the procedural rule and is measured by reasonableness and prejudice.
[1] A defense request for a continuance generally waives the right to a speedy trial under Florida Rule of Criminal Procedure 8.191.
[2] An attorney's actions on behalf of a client are binding on the client, even if done without consultation or against the client's wishes.
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Join FLexlaw to unlock all legal intelligence“Generally, a defense request for a continuance waives the right to speedy trial.”
Establishes that counsel's continuance requests waived Lozano's procedural speedy trial right under Rule 8.191
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Join FLexlaw to unlock all legal intelligenceLozano filed a postconviction motion arguing his trial counsel was ineffective for failing to assert both procedural and constitutional speedy trial r…
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Jose Guerrero Lozano appeals the order summarily denying his motion alleging ineffective assistance of counsel under Florida Rule of Criminal Procedure 3.850. We affirm, in part, reverse, in part, and remand for further proceedings.
In his motion, Lozano ai-gued that his trial counsel was ineffective for failing to assert both his procedural and his constitutional speedy trial rights. The postcon-viction .court correctly denied Lozano’s claim with regard to his speedy trial rights under Florida Rule of Criminal Procedure 8.191; the record contains numerous requests for cqntinuances by counsel. See State v. Burgess, 153 So.3d 286, 288 (Fla. 2d DCA 2014) (“Generally, a defense request for a continuance waives the right to speedy trial.” (citing Banks v. State, 691 So.2d 490, 491 (Fla. 4th DCA 1997))); see also State v. Abrams, 350 So.2d 1104, 1105 (Fla. 4th DCA 1977) (“The acts of an attorney on behalf of a client will be binding on the client even though done without consulting him and even against the client’s wishes.”) (first citing McArthur v. State, 303 So.2d 359 (Fla. 3d DCA 1974); then citing Brown v. State, 328 So.2d 497 (Fla. 3d DCA 1976))).
The postconviction court, however, failed to address Lozano’s claim of ineffective assistance of counsel for failure to assert his constitutional right to speedy trial. See State v. Naveira, 873, So.2d 300, 308 (Fla.2004) (“Once the speedy trial rule has been waived, it is supplanted by the constitutional speedy trial period which is measured in tests of reasonableness and prejudice, not specific numbers of days.” (quoting Blackstock v. Newman, 461 So.2d 1021, 1022 (Fla. 3d DCA 1985))); Gamble v. State, 996 So.2d 946, 947 (Fla. 2d DCA 2008) (citing Naveira, 873 So.2d at 308).
Accordingly, we reverse the postconviction court’s order insofar as it failed to address Lozano’s claim concerning his constitutional speedy trial right and remand for the court to address that claim. If the postconviction court determines that the claim is facially insufficient, the court should strike it with leave to amend within sixty days. See Fla. R. Crim. P. 3.850(f)(2).
Affirmed, in part, reversed, in part, and remanded.
LaROSE, MORRIS, and SLEET, JJ„ Concur.
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Dunbar v. State, 219 So. 3d 202 (Fla. 5th DCA 2017)…strikes Dunbar’s barely legible motion for leave to. amend and directs him to file an amended motion to amend. We therefore conclude the trial court erred when it failed to consider Dunbar’s postconviction motion on the merits. See Lozano v. State, 202 So. 3d 148, 148 (Fla. 2d DCA 2016); Koszegi v. State, 993 So. 2d 133, 134 (Fla. 2d DCA 2008) (“The post-conviction court must give the defendant at least one opportunity to correct facially deficient postconviction claims.” (citing Spera, 971 So. 2d at 761. Ac…1 / 2
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Wolfe v. State, 275 So. 3d 1203 (Fla. 2d DCA 2019)
Authorities Cited
- State v. Abrams, 350 So. 2d 1104 (Fla. 4th DCA 1977)
- Blackstock v. The Honorable Robert H. Newman, 461 So. 2d 1021 (Fla. 3d DCA 1985)
- Atkins v. State, 303 So. 2d 359 (Fla. 3d DCA 1974)
- Albert Banks v. State, 691 So. 2d 490 (Fla. 4th DCA 1997)
- J. B. v. State, 328 So. 2d 497 (Fla. 3d DCA 1976)
- State v. Burgess, 153 So. 3d 286 (Fla. 2d DCA 2014)
- Samson Lee Gamble v. State, 996 So. 2d 946 (Fla. 2d DCA 2008)