LEROY MCMULLEN, APPELLANT (DEFENDANT),
v.
STATE OF FLORIDA, APPELLEE (STATE)
BY THE COURT.
The State adduced sufficient evidence to constitute a prima facie showing, pursuant to Rule 3.191(e), Florida Rules of Criminal Procedure, that the accused made himself unavailable for trial by failing to respond to a notice of arraignment regularly mailed to him. In the circumstances of this case, the trial court was not obliged to accept as conclusive the accused’s denial that he received the notice of arraignment. Contrast State ex rel. Kennedy v. McCauley, 265 So. 2d 547 (Fla.App. 4th, 1972). The trial court was therefore justified in its conclusion that the accused need not be discharged under the speedy trial rule. The judgment and sentence are therefore
AFFIRMED.
MILLS and SMITH, JJ., concur. BOYER, C. J., dissents.
BOYER, Chief Judge
(dissenting).
As in State ex rel. Kennedy v. McCauley, Fla.App. 4th 1972, 265 So. 2d 547, the only issue sub judice is whether appellant was continuously available for trial between his initial arrest and the time that he filed his Motion for Discharge pursuant to Rule 3.191, RCrP. In my view that case is controlling and appellant clearly established his continuous availability.
The State contends that it adduced sufficient evidence to constitute a prima facie showing that the accused made himself unavailable for trial by failing to respond to a notice of arraignment allegedly regularly mailed to him. In my view, the mere proof 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 availability. The Court of Appeal found merit in the State’s contention reciting that the record in that case was “lacking any proof to establish continuous availability” (278 So. 2d 335).
On the contrary, sub judice the record is filled with proof that appellant •was continuously available. Not only did the uncontradicted proof establish that appellant was continuously physically available, but it also established that repeated inquiries were made on appellant’s behalf as to the charges against him.
I would reverse.
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Dempsey v. State, 82 So. 3d 928 (Fla. 4th DCA 2011)…vailability.” Fla. R.Crim. P. 3.191(k). The burden then shifts to the defense to “establish, by competent proof, availability during the term.” Id. The State adduced sufficient evidence tending to show nonavailability. See, e.g., McMullen v. State, 331 So. 2d 357 (Fla. 1st DCA 1976) (holding that State produced sufficient evidence to make a prima facie showing of unavailability based on defendant failing to respond to a notice of arraignment that was mailed to defendant). The defense did not produce, or atte…
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Harris v. State, 406 So. 2d 99 (Fla. 3d DCA 1981)…PER CURIAM. Affirmed. Sherrod v. Franza, 396 So. 2d 1136 (Fla. 4th DCA 1981); State v. Grooms, 389 So. 2d 313 (Fla. 2d DCA 1980); McMullen v. State, 331 So. 2d 357 (Fla. 1st DCA 1976).…
Authorities Cited
- Leiseder v. State, 265 So. 2d 547 (Fla. 2d DCA 1972)
- The State of Fla. ex rel. Willie Preston Kennedy, Jr. v. McCAULEY, 265 So. 2d 547 (Fla. 4th DCA 1972)
- Dara v. State, 278 So. 2d 334 (Fla. 3d DCA 1973)
- Holland v. State, 278 So. 2d 335 (Fla. 3d DCA 1973)