ALPHONSO STUART, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Alphonso Stuart appealed his conviction for breaking and entering with intent to commit grand larceny, arguing he was denied a speedy trial and that the trial court improperly refused to instruct the jury on criminal trespass as a lesser included offense. The appellate court affirmed, finding Stuart effectively waived his speedy trial right and that criminal trespass was not a necessarily included offense in the charged crime.
The defendant effectively waived his right to a speedy trial through plea negotiations and defense counsel's acquiescence to setting the trial on the 181st day. The trial court properly refused to instruct on criminal trespass because it is not a necessarily included offense in breaking and entering with intent to commit grand larceny.
[1] A defendant waives the right to a speedy trial by participating in plea negotiations and acquiescing to the court setting the trial beyond the statutory time limit.
[2] A trial court properly refuses to instruct the jury on a lesser included offense if that offense is not necessarily included within the offense charged.
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Join FLexlaw to unlock all legal intelligence“the defendant effectively waived his right to be tried within the time limitation of the Rule because of the plea negotiations and because of the defense counsel's acquiescence to the Court setting the trial on the 181st day”
Establishes the basis for finding waiver of speedy trial rights
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Join FLexlaw to unlock all legal intelligenceStuart was arrested on November 8, 1974 and tried on May 8, 1975 (the 181st day after arrest). On April 28, 1975, the State and defense counsel appear…
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PER CURIAM.
Appellant was charged in the trial court with breaking and entering with the intent to commit a felony, to-wit, grand larceny. An order withholding adjudication was entered, and the defendant was placed on probation for three (3) years. This appeal questions whether the trial court should have discharged the defendant/appellant and dismissed the case pending against him on the ground that he was not afforded a speedy trial in accordance with the requirements of law, and further questions whether the trial court properly refused to instruct the jury on criminal trespass.
The defendant was arrested on November 8, 1974. The record reveals that the defendant’s trial commenced on May 8, 1975, the 181st day after arrest. From the record it affirmatively appears that there has been a waiver of defendant’s right to speedy trial by the proceedings taking place in open court. On Monday, April 28, 1975, counsel for the State and the defendant appeared before the trial judge as a plea was being negotiated. It was agreed to set the case over to April 30, 1975, for a report on the plea. Subsequently, the State and the defendant’s counsel reported that the negotiated plea was refused, and the case would be placed on standby status for trial. On May 7, 1975, the Court announced, “All right, could we go with this one number one today?” Counsel for the State announced the State witness had come to court numerous times, and the defendant was on standby as well. Then the Court announced again, “I will put it over to tomorrow, but if a trial starts and runs three days, I don’t want anyone complaining they can’t get a speedy trial.” Defense counsel did not object and, even though his defendant was not present in court, he said he was ready for trial.
We have determined that the defendant effectively waived his right to be tried within the time limitation of the Rule because of the plea negotiations and because of the defense counsel’s acquiescence to the Court setting the trial on the 181st day. See State v. Kelley, 322 So. 2d 581 (Fla.App. 1st 1975). Also, see State v. Earnest, 265 So. 2d 397 (Fla.App. 1st 1972).
We find that the trial court properly refused to instruct the jury on criminal trespass. We find that the proposed less included charge is not an offense necessarily included in the offense charged of breaking and entering with the intent to commit a felony therein, to-wit, grand larceny. The record reveals that the trial court instructed the jury on a number of lesser offenses of which the jury could have found the defendant guilty.
Even though the Court waived the necessity of a written instruction on the lesser included charge on trespass, the Court should have been informed exactly what instruction the defendant sought, which was not done in this case. Rivers v. State, 307 So. 2d 826 (Fla.App.1975).
For the reasons above set forth, the judgment appealed is therefore affirmed.
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Alphonso Stuart v. State, 360 So. 2d 406 (Fla. 1978)…BOYD, Justice. By petition for a writ of certiorari we have for review a decision of the District Court of Appeal, Third District (Stuart v. State, 339 So. 2d 659), which conflicts with decisions in Gue v. State, 297 So. 2d 135 (Fla.2d DCA 1974) and State ex rel. Flowers v. Goodman, 241 So. 2d 457 (Fla.3d DCA 1970). We have jurisdiction, pursuant to Article V, Section 3(b)(3), Florida Constitution. After bei…
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McKINNEY v. Honorable Theron A. Yawn, Jr., 625 So. 2d 885 (Fla. 1st DCA 1993)…re there was an acknowledgment by the court or one of the parties of a speedy trial issue followed by the defense’s acquiescence in a trial date set beyond the speedy trial period. State v. Kelley, 322 So. 2d 581 (Fla. 1st DCA 1975); Stuart v. State 339 So. 2d 659 (Fla. 3d DCA 1976); State v. Earnest, 265 So. 2d 397 (Fla. 1st DCA 1972); and Eastwood v. Hall, 258 So. 2d 269 (Fla. 2nd DCA 1972). However, none of these circumstances has occurred in the instant case. 349 So. 2d at 839. This discussion in Ansley…
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State v. Ansley, 349 So. 2d 837 (Fla. 1st DCA 1977)…e there was an acknowledgment by the court or one of the parties of a speedy trial issue followed by the defense’s acquiescence in a trial date set beyond the speedy trial period. State v. Kelley, 322 So. 2d 581 (Fla. 1st DCA 1975); Stuart v. State, 339 So. 2d 659 (Fla. 3rd DCA 1976); State v. Earnest, 265 So. 2d 397 (Fla. 1st DCA 1972); and Eastwood v. Hall, 258 So. 2d 269 (Fla. 2nd DCA 1972). However, none of these circumstances has occurred in the instant case. We hold that mere silence alone on the part…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Earnest, 265 So. 2d 397 (Fla. 1st DCA 1972)
- State v. Kelley, 322 So. 2d 581 (Fla. 1st DCA 1975)
- Ballard v. State, 307 So. 2d 826 (Fla. 1st DCA 1975)