WILLIAM L. DARA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE; DAVID CLARK HARNER, APPELLANT, V. THE STATE OF FLORIDA, APPELLEE
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Two appellants convicted of grand larceny and breaking and entering appealed on grounds including denial of directed verdict and failure to bring them to trial within 180 days. The court affirmed both convictions, finding the 180-day rule claim forfeited because the defendant failed to demonstrate continuous availability after missing his arraignment.
The court affirmed both convictions. For Harner, the assignments of error were found not well-taken despite his counsel's failure to file a brief or appear. For Dara, although the 180-day period was exceeded, the conviction was affirmed because Dara failed to establish continuous availability for trial as required by Rule 3.191(e), having missed his arraignment.
[1] An appellate court may affirm a conviction despite an appellant's failure to comply with appellate rules, provided the court has examined the record and found the assignm…
[2] A defendant's failure to appear for arraignment, leading to bond forfeiture, may negate their claim of continuous availability for trial under speedy trial rules.
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Join FLexlaw to unlock all legal intelligence“This record lacking any proof to establish continuous availability, we find merit in the State's contention and affirm the conviction of the appellant Dara here under review.”
The court's holding that Dara forfeited the 180-day rule claim by failing to prove continuous availability for trial, thereby affirming his conviction.
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Join FLexlaw to unlock all legal intelligenceAppellants Dara and Harner were convicted of grand larceny, breaking and entering with intent to commit a felony, and related offenses. Dara was arres…
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The appellants were convicted of grand larceny, breaking and entering, with intent to commit a felony, to wit: grand larceny and breaking and entering with intent to commit a misdemeanor, to wit: petit larceny. They were represented by private counsel during the trial. Subsequently, the public defender was appointed to represent both of them for purposes of appeal and filed assignments of error, which urged error in the denial of the motion for directed verdict, denial of the motion for judgment of acquittal, and error in denying motion for new trial.
During the pendency of the appeal, upon representations that the appellant Harner had retained private counsel, the public defender was relieved of the responsibility of representing said appellant in this court. Thereafter, private counsel filed a motion for supersedeas on behalf of the appellant Harner, which was denied without prejudice. Subsequently, the public defender’s office filed its brief on behalf of the appellant Dara, and requested to amend his assignments of error to add an additional assignment contending that the court erred in failing to bring said appellant to trial within a period of 180 days, under the applicable rule, Rule 3.191(a)(1) CrPR, 33 *335F.S.A. The State responded to this brief and this court, by due notice, set the matter for oral argument as to both appellants with notices having been sent in due course to private counsel for the appellant Harner and to the public defender’s office.
In addition to not filing a brief on behalf of the appellant Harner, his private counsel did not appear for oral argument. Notwithstanding the failure to file a brief on the only assignments of error applicable to the appellant Harner [those originally filed by the public defender], we have examined the record in light of these alleged errors and find them not to be well-taken and, therefore, affirm the conviction as to the appellant Harner although his appeal is subject to dismissal for failure to comply with the appellate rules. Prevatt v. Link, Fla.App.1958, 107 So.2d 37; Ferrell Jewelers of Tampa, Inc., v. Southern Mill Creek Products Company, Inc., Fla.1967, 205 So. 2d 657; Hemmerle v. City of Wilton Manors, Fla.App.1971, 251 So.2d 146; Rule 6.-13, F.A.R., 32 F.S.A.
Turning to the appellant Dara, the only point preserved on appeal was raised by the supplemental assignment of error that he was not tried within 180 days of his arrest. This is readily apparent on the record, he having been arrested on July 30, 1971 and not tried until March 13, 1972. However, the record discloses that he was released on bond; that on September 22, 1971 his bondsman was notified to produce him for arraignment scheduled on September 30, 1971; that said appellant failed to appear for arraignment, and the court ordered the bond estreated. Thereafter, the appellant with his counsel did appear and the court vacated the estreature on October 14, 1971 and quashed an alias summons that had been issued for him.
The State contends that the failure' to appear at arraignment demonstrated that the appellant was not continually available for trial and, therefore, it was incumbent upon the accused [the appellant Dara] to show by “competent proof” continuous availability. Rule 3.191(e), CrPR. This record lacking any proof to establish continuous availability, we find merit in the State’s contention and affirm the conviction of the appellant Dara here under review.
Affirmed.
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Citator
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Anderson v. State, 330 So. 2d 113 (Fla. 3d DCA 1976)…PER CURIAM. Affirmed. See Data v. State, Fla.App. 1973, 278 So. 2d 334.…
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State v. Collie, 390 So. 2d 441 (Fla. 5th DCA 1980)…Ordinarily, a defendant who is on bail and who fails to appear in court pursuant to proper notice is unavailable for trial for purposes of the speedy trial time limits. State ex rel. Smith v. Nesbitt, 355 So. 2d 202 (Fla.3d DCA 1978); Dara v. State, 278 So. 2d 334 (Fla.3d DCA 1973). For purposes of non-appearance, notice to the bondsman or surety is equivalent to notice to the principal. State v. United Bonding Ins. Co., 81 N.M. 154, 464 P. 2d 884 (1970). In the recent case of State v. Grooms, 389 So. 2d 313…1 / 2
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McMULLEN v. State, 331 So. 2d 357 (Fla. 1st DCA 1976)…oof of the mailing of a notice of arraignment by the state, without more, does not support a finding that the accused made himself unavailable so as to avoid the mandate of Rule 3.191, RCrP. The State seeks solace in Dara v. State, Fla.App. 3d 1973, 278 So. 2d 334. In that case the State contended, as here, that the failure to appear for arraignment demonstrated that appellant was not continually available for trial and that therefore it was incumbent upon the accused to show by competent proof continuous ava…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Liberty Assocs., Inc. v. Fishman, 205 So. 2d 657 (Fla. 1968)
- Hemmerle v. City OF Wilton Manors, 251 So. 2d 146 (Fla. 4th DCA 1971)
- Prevatt v. Ressie Link, 107 So. 2d 37 (Fla. 2d DCA 1958)