4._ESMAIL_V._STATE_ _2022_AP_4_AP_ _12.15.2023
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Shezad Esmail appealed a traffic court decision finding him guilty of unlawful speed on the interstate, arguing the hearing officer abused discretion by not vacating the judgment due to alleged lack of notice. The appellate court affirmed, holding that proper notice was provided and that even if a new hearing were granted, Esmail's speedy trial defense would fail because the 180-day rule was tolled during the COVID-19 emergency period.
The court affirmed the hearing officer's decision, holding that she did not abuse discretion in denying the motion to vacate because proper notice was provided. Additionally, even if a new hearing had been granted, Esmail's speedy trial defense would fail because the 180-day rule was tolled during the COVID-19 emergency period and his hearing was held within the extended deadline.
[1] A traffic court hearing officer does not abuse discretion by failing to grant a new hearing based on a claim of lack of notice when the notice sent to the defendant and c…
[2] Errors in sentencing procedure do not render a sentence illegal and correctable at any time.
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“the Notice to Appear in this case included the names and addresses of both Esmail and his prior counsel, and this Court cannot say that the hearing officer abused her discretion in failing to grant a new hearing to Esmail on the basis that he lacked notice of the proceedings.”
Establishes that proper notice was provided and hearing officer did not abuse discretion in denying motion to vacate
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEsmail was cited for unlawful speed on the interstate. He did not appear at his scheduled traffic hearing and claimed he and his prior counsel did not…
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Appeal from the County Traffic Court, in and for Osceola County, Florida, Andrea Anderson, Traffic Hearing Officer. Shezad Esmail, pro se, Appellant. No appearance for Appellee. Before SHAFFER, LATIMORE, and NETCHER. Appellant Shezad S. Esmail ("Esmail '') seeks a review of an order of a Traffic Court Hearing Officer denying his motion to vacate the hearing officer's earlier order determining him guilty of the civil traffic infraction of unlawful speed on the interstate. This Court has jurisdiction. See Florida Statute § 318.33; Rule 6.630(d), Fla. R. Traf. Ct.; Rule 9.030(c)(l)(A), Fla. R. App. P. We reject the claims on appeal. Page 1 of3 2022 AP 000004 AP [*2] Esmail contends that the hearing officer in his case abused her discretion in not vacating the judgment below pursuant to Florida Rule of Traffic Court 6.450(g) after neither he nor his counsel below appeared at his scheduled hearing, both claiming to have not received a copy of the notice setting the hearing in the case. 1 Esmail asserts that had he been afforded a new hearing, he would have had a viable defense to the charge since the hearing was held outside of the one hundred eighty (180) day rule requiring dismissal of the matter. The Notice to Appear in this case included the names and addresses of both Esmail and his prior counsel, and this Court cannot say that the hearing officer abused her discretion in failing to grant a new hearing to Esmail on the basis that he lacked notice of the proceedings. Regardless, even if a new hearing was granted, Esmail's claim of a meritorious defense to the citation below for failure to comply with the 180-day speedy trial rule under Florida Rule of Traffic Court 6.325(a) would fail. As a result of the COVID-19 Emergency measures promulgated by the Florida Supreme Court, the 180-day speedy trial rule was tolled in non-criminal traffic court from March 13, 2020, through October 4, 2021. See Florida Supreme Court 11 Esniail also contends that such alleged lack of notice also makes his sentence an illegal one which may be corrected at any time under Rule 6.490(a), Fla. R. Traf. Ct., but errors in sentencing procedure do not make a sentence "illegal." Heare v. State, 283 So. 3d 390,392 (Fla. 2d DCA 2019), citing Wright v, State, 911 So. 2d 81, 83 (Fla. 2005). Page2of3 2022 AP 000004 AP [*3] AOSC21-17, IN RE: COVID-19 HEALTH AND SAFETY PROTOCOLS AND
EMERGENCY OPERATIONAL MEASURES FOR FLORIDA APPELLATE
AND TRIAL COURTS, Amendment 2, issued on November 4, 2021. Since Esmail 's citation was issued during the tolled period, his case had to be heard within 180 days after October 4, 2021. Esmail 'shearing was held well within the extended time period.
AFFIRMED.
DONE AND ORDERED in Chambers at Kissimmee, Osceola County, Florida, this Ji_ day of _~lli~~<-____ , 2023. -- ,,. AUM SHAFFER Presiding Circuit Judge LATllVIORE and NETCHER, J.J., concur. CERTIFICATE OF SERVICE l i 11 CERTI~ ~h~t the foregoing was filed with the Clerk of the Court this -~~--+- day of~- , 2023, by using the Florida Courts E-Filing Portal System. Accordingly, a copy of the foregoing is being served on this day to all attorney(s)/interested parties identified on the eP01ial Electronic Service List via transmission of Notices of Electronic Filing generated by the ePortal System, including SHEZAD ESMAIL at [email protected]. Page 3 of3 2022 AP 000004 AP
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Citator
Authorities Cited
- Wright v. State, 911 So. 2d 81 (Fla. 2005)
- Heare v. State, 283 So. 3d 390 (Fla. 2d DCA 2019)