LOUIS MONTALVO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Louis Montalvo appealed his manslaughter conviction, claiming the trial court erred in denying his motion to discharge based on deprivation of his right to a speedy trial. The appellate court affirmed the conviction because the record on appeal was incomplete, specifically lacking the proceedings from the October 18 hearing on the motion to discharge, preventing meaningful appellate review.
The court could not determine whether the trial court erred because the record on appeal was incomplete, specifically lacking the proceedings and arguments from the October 18 hearing on the motion to discharge. Therefore, the court could not assess whether Montalvo proved his continuous availability for trial as required by the rule.
[1] An appellant may not present an alleged error for appellate consideration on an incomplete record if the matter might affect the determination of the reviewing court.
[2] A defendant who fails to appear at arraignment bears the burden of establishing continuous availability for trial by competent proof at a hearing on a motion for discharg…
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Join FLexlaw to unlock all legal intelligence“It repeatedly has been held that an appellant may not present an alleged error for appellate consideration on an incomplete record if the matter might affect the determination of the reviewing court.”
Establishes the fundamental principle that incomplete records prevent appellate review of alleged errors.
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Join FLexlaw to unlock all legal intelligenceMontalvo was arrested for second degree murder on October 2, 1973, and discharged after a preliminary hearing on October 11. The State filed an inform…
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[*675] PER CURIAM.
Defendant appeals his conviction of manslaughter and alleges the trial court erred in denying his motion for discharge on the grounds that he was deprived of his right to a speedy trial pursuant to RC-rP 3.191(a)(1).
On October 2, 1973, defendant, Louis Montalvo, was arrested for second degree murder. On October 11, he was discharged following a preliminary hearing. On the same date, the State filed an information charging the defendant with second degree murder, but no capias was issued. On October 25, the clerk sent notice to appear for the arraignment to the defendant who did not receive it because he had changed his address after the preliminary hearing. Having failed to appear at the arraignment, on October 30 an alias capias was issued for the defendant. Subsequently, on September 2, 1974 the defendant was arrested on this capias. He filed a motion for discharge which was heard on October 18 and denied on December 3. The proceedings of the October 18 hearing have not been included in the record on appeal. Thereafter, the State reduced the charge to manslaughter and defendant entered a plea of nolo contendere. Following entry of the judgment of conviction, defendant perfected this appeal from the denial of his motion to discharge.
It repeatedly has been held that an appellant may not present an alleged error for appellate consideration on an incomplete record if the matter might affect the determination of the reviewing court. Costantino v. State, Fla.App.1969, 224 So. 2d 341, 343 and Royal Flair, Inc. v. Cape Coral Bank, Fla.App.1971, 251 So. 2d 895.
The defendant having failed to appear at the arraignment, the burden devolved upon him to establish at the hearing on his motion for discharge by competent proof his continuous availability for trial pursuant to RCrP 3.191(e).1 See Pedro v. State, Fla.App.1973, 287 So. 2d 397.
There being absent from the record the proceedings and arguments of counsel presented to the trial court at the October 18 hearing on appellant’s motion to dismiss, we cannot determine whether appellant proved his availability for trial and whether the trial court’s denial of his motion was erroneous. See Hall v. State, Fla.App. 1975, 309 So. 2d 248.
Affirmed.
. “(e) Availability for Trial. The trial of an accused who is not available shall be held in abeyance while such person is unavailable. A person who has not been continuously available for trial during the term provided for herein is not entitled to be discharged; no persumption of non-availability attaches, but if the State objects to discharge and presents any evidence tending to show non-availability, the accused then must by competent proof establish continuous availability during the term.”
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Cases With Similar Vibessemantic neighbors from the corpus
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Rollins v. State, 369 So. 2d 950 (Fla. 3d DCA 1978)…nd requested on the record that in the event of appeal of his ruling, the defendant should bring to this court the record of all continuances. This was not done. Accordingly, we find no error under this point upon this record. Cf. Montalvo v. State, 323 So. 2d 674 (Fla.3d DCA 1975). The Defendant’s remaining point shows reversible error on this record. It is as follows: [*951] “Where the defendant was charged with second degree murder, the failure of the trial court to instruct the jury on third degree murde…
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State v. Rollins, 386 So. 2d 619 (Fla. 3d DCA 1980)…nd requested on the record that in the event of appeal of his ruling, the defendant should bring to this court the record of all continuances. This was not done. Accordingly, we find no error under this point upon this record. Cf. Montalvo v. State, 323 So. 2d 674 (Fla. 3d DCA 1975). Rollins v. State, 369 So. 2d 950 (Fla. 3d DCA 1978). [Footnote omitted] Although this court found no error in the denial of the motion for discharge, it determined that the trial court committed reversible error in failing to i…
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State v. Hough, 332 So. 2d 98 (Fla. 3d DCA 1976)…ying with the mandate of the Supreme Court. See Constantino v. State, Fla.App. 1969, 224 So. 2d 341; Royal Flair, Inc. v. Cape Coral Bank, Fla.App.1971, 251 So. 2d 895; Hall v. State, Fla.App.1975, 309 So. 2d 248; Montalvo v. State, Fla.App.3d 1975, 323 So. 2d 674. Affirmed. . “914.04 Witnesses; person not excused from testifying in certain prosecutions on ground testimony might incriminate him ; immunity from prosecution “No person, having been duly served with a subpoena or subpoena duces tecum, shall be…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Costantino v. State, 224 So. 2d 341 (Fla. 3d DCA 1969)
- Royal Flair, Inc. v. The Cape Coral Bank, 251 So. 2d 895 (Fla. 2d DCA 1971)
- Daniel v. State, 309 So. 2d 248 (Fla. 4th DCA 1975)
- Hall v. State, 309 So. 2d 248 (Fla. 4th DCA 1975)
- Pedro v. State, 287 So. 2d 397 (Fla. 3d DCA 1973)