II. SUPPORTING FACTS - Home - Supreme Court of Florida - …€¦ · · 2017-06-28Demand for...

SUPREME COURT OF FLORIDA

CARLTON X. MATHEWS,Petitioner,

vs. Case No.:L.T. Case No: 16-2014-CF-008252

STATE OF FLORIDA,Respondent.

PETITION FOR WRIT OF PROHIBITION

O

COMES NOW, Petitioner, Carlton Mathews, in propia persona, and

res ectfully moves the Court, pursuant to Article V, Section 3(b)(7) of the=

FIbrida Constitution, and Florida Rules of Appellate Procedure 9.030(a)(3),

for a writ of prohibition, prohibiting the Fourth Judicial Circuit from

proceeding to trial in Duval Case #16-2014-CF0008252-AXXXMA. In

support of this petition, Petitioner states as follows:

I. JURISDICTION

This Court has jurisdiction to issue writs ofmandamus and prohibition

pursuant to Article V, Section 4(b)(3) of the Florida Constitution and Rule

9.030(b)(3) of the Florida Rules of Appellate Procedure.

II. SUPPORTING FACTS

1

On January 1, 11, 2016, Defendant was scheduled for a hearing out of the

ordinary. At this hearing, the State filed a motion to strike Defendant's

Demand for Speedy Trial, or in the alternative, motion for extension of speedy

trial. However, in this hearing, .the State argued issue of Defendant's

readiness, investigation, improper motion, and victim Mrs. Howell giving

birth to premature child and still recovery. In support of this motion,

Petitioner states the following:

1. Even though Motion had incorrect Florida criminal rule number, and it

implied to juvenile proceeding. However, the title and body of motion

was correct. With large letters imprinted, Demand for Speedy Trial.

2. The defendant investigator is not the counselor, therefore it's not counsel

(pro se) fault if investigator is not moving as same standard as counselor,

and asking for material from the State two (2) or three (3) weeks later after

defendant (pro se) have asked him weeks in advance to retrieve certain

information.

3. Additionally, victim Mrs. Howell having a premature baby and recovering

from childbirth does not fall up under exceptional circumstances Rule

3.191(1)(3)

4. Nor did victim Mrs. Howell notify State Attorney to let her know that she

was pregnant and expecting to give child birth to child.

2

5. There was never a.calendar call nor hearing required by Rule 3.191(b)(1).

Therefore violated Defendant's rights, and the actual purpose of having a

hearing. Wherefore, State could have had an opportunity to object to

motion, certain conditions of victim, or motion being improper. Exhibit

C. The Defendant, however, was not afforded a hearing nor trial required

by Rule 3.191(p)(3).

6. Since Defendant was not brought to trial within 60-days, Fla.R.Crim.P.

3.191(b), nor after counsel filed notice ofexpiration of speedy trial period.

Fla.R.Crim.P.3.191(p)(3). Therefore, it is mandatory that Defendant be

discharged. Fla.R.Crim.P. 3.191(a), (p)(3), Hill v. State, 132 So.3d 925

(Fla. l'' DCA 2014).

III. ARGUMENT

The Courts only concern were the conditions of the victim Mrs. Howell.

However, motion demand for speedy trial was filed on November 18th

Nevertheless, there was a preset trial date already set for January 17, 2017.

But the whole ordeal of the Demand for Speedy Trial were to keep the State

committed to that date, and not being allowed to retreat or back out of trial.

Court records will declare that defendant's court date was passed from

January 6th, to January 24, 2017, well after the sixty (60) day.

3

Then State mysteriously somehow realized the catastrophic mistake and

scheduled defendant for this hearing on January 11th, to strike motion for

demand for speedy trial, or for extension of speedy trial. Therefore, the

hearing was.obstructed on an unusual day before the 24th because the sixty

(60) day would have already ran. Nevertheless, the Court should have

simply denied the State's motion to strike demand for speedy trial, or

extension of speedy trial, because pregnancy does not fall up under

exceptional circumstances, nor is pregnancy an unexpected illness.

Furthermore, State even went to the instinct to speed dial victim Mrs. Howell

on phone to give testimony over phone to the Court as to her medical

condition. Mrs. Howell state, "that she had to have a c-section and received

surgery a few weeks ago and her baby had restrictions and should not be

around people, because baby could possibly get an infection and she had to

breastfeed baby. Defendant (pro se) was then however, giving a chance to

cross-examine witness and obtain the actual true reason why she was

unavailable, which was Mrs. Howell were having financial problems.

Furthermore, Mrs. Howell stated that she was, however, medically stable, but

by her having other kids nor the funds for a babysitter or had no one to babysit

her kids nor the funds for a baby sitter or to travel. And Mrs. Howell did

admit that she had been out in public since she gave birth to child. Ms.

4

Howell also admitted that she did not warn prosecutor of her pregnancy.

Counsel (pro se) questioned why she did not warn the prosecutor of her

pregnancy and Mrs. Howell then stated, "I haven't talked to no prosecutor

until recently, that's why."

Additionally, In accordance with Fla.R. 3.191 (b)(1), court was required

to hold hearing within five days. Wherefore, Petitioner filed his "Motion for

Demand of Speedy Trial" filed on November 18th 2016. However, the courts

was required by rule 3.191 (b)(1) to conduct a calendar call within five days.

See Exhibit B. However, the trial court ignored Petitioner pleading demand of

speedy trial, and failed to conduct required hearing nor trial within 15 days.

Subsequently, on 1/10/2017, Petitioner failed "Notice ofExpiration of Speedy

Trial Period. Which no hearing was held or defendant brought to trial required

by Fla.R. Crim.P. 3.191 (p)(3).

Also, Petitioner filed Motion To Dischrage on 2/28/2017, and was not

brought to a hearing within five days as required by Rule 3.191 (i)(4). See

Ariza v. Cycmanick, 548 So .2d 304 ( Fla. App. 5th DCA 19890; See Massey

v. Graziano, 564 So. 2d 287 ( Fla. App.5th DCA 1990)( Citing Lenard v.

Moxley In And For Brevard County, 497 So .2d 973)( Fla. App. 5th DCA

1986).

5

Furthermore, trial court lost jurisdiction to prosecute defendant for crimes

for which he was arrested, where Petitioner was not brought to a hearing

within five (5) days of filing of speedy trial time.

Nevertheless, the State made a devastating mistake by potentially

disdaining the motion for demand for speedy trial. However, to deny

defendant ofhis constitutional rights to speedy trial is the equivalent to having

no speedy trial rights at all.

IV. REQUEST FOR RELIEF

WHEREFORE, Petitioner seeks a writ ofprohibition, which prohibits the

Fourth Judicial Circuit from proceeding to trial in Duval Case

#16-2014-CF-008252-AXXX-MA, and therefore ultimately results in the

dismissal of the charges.

6

OATH

Under penalties of perjury and administrative sanctions from the

Department of Corrections, including forfeiture of gain time if this motion is

found to be frivolous or made in bad faith, I certify that I understand the

contents of the foregoing motion, that the facts contained in the motion are

true and correct, and that I have a reasonable belief that the motion is timely

filed. I certify that this motion does not duplicate previous motions that have

been disposed ofby the court. I further certify that I understand English

Respectfully submitted,

Carlton X. MatthewsJAIL NO.: 2014023245

7

OATH OF COMPLIANCE

I hereby certify that the foregoing petition is in compliance with the

requirements of Rule 9.100 of Florida Rules ofAppellate Procedure.


Carlton X. MatthewJAIL NO.: 2014023245

. CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has

been delivered, by mail, to the Office of the Attorney General, Office of the

State Attoreny, 311 Monroe St, Jacksonville, FL 32202. Clerk of Court, 501

West Adams St, Jacksonville, FL 32202. The Capitol PL-01, Tallahassee,

Florida 32399 on this_ day of June, 2017.


/s/Carlton X. MatthewsJAIL NO.: 2014023245

8

IN THE DISTRICT COURT OF APPEALFIRST DISTRICT, STATE OF FLORIDA

CARLTON X. MATHEWS, NOT FINAL UNTIL TIME EXPIRES TOFILE MOTION FOR REHEARING AND

Petitioner, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D17-0769

STATE OF FLORIDA,

Respondent.

Opinion filed June 5, 2017.

Petition for Writ of Prohibition -- Original Jurisdiction

Carlton X. Mathews, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.

PER CURIAM.

The petition for writ ofprohibition is denied on the merits.

WETHERELL, RAY, and MAKAR, JJ., CONCUR.

EXHIBIT A

1

1IN THE CIRCUIT COURT, FOURTH

2 JUDICIAL CIRCUIT, IN AND FORDUVAL COUNTY, FLORIDA

3CASE NO.: 16-2014-CF-008252

4DIVISION: CR-F

5

6 STATE OF FLORIDA

8 CARLTON XAVIER MATTHEWS,

9 Defendant.

10

11 STATE OF FLORIDA )

12 COUNTY OF DUVAL )

13

14 Proceedings before the Honorable Waddell Wallace, Judge

15 of the Circuit Court, Division CR-F, as cause in this matter

16 came to be heard on the 6th of December, 2016, at 11:40 a.m.,

17 Duval County Courthouse, 501 West Adams Street, Jacksonville,

18 Florida 32202, before Angela Sass, Florida Professional

19 Reporter and Notary Public in and for the State of Florida at

20 Large.

21

22

23

OFFICIAL RÉPORTERS, INC.24 421 WEST CHURCH STREET, SUITE 701

25 OW ,s FL S2202(904) 358-2090

2

1 APPEARANCES:

2 TONYA PATTERSON-BARGE, Esquire

Assistant State Attorney3 311 West Monroe Street

Jacksonville, Florida 32202

5 Appearing on behalf of the State of Florida

ALSO PRESENT:6

MARSHALL BOYKIN, Private Investigator7 Boykin & Associates, LLC

25 North Market Street #2358 Jacksonville, Florida 32202

9

10 APPearing on behalf of the defendant

11

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15

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19

. 20

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3

1 P R O C E E D I N G S

2 12/06/201611:40 a.m.

3 MS. BARGE: I would like to next call the case of

4 Carlton Matthews. He is case number 19. It's at the

5 top of page 10.

6 (Mr. Boykin came forward. )

MR. BOYKIN: Good morning.

8 THE COURT: How are you this morning, Mr. Boykin?

9 MR. BOYKIN: Good, sir.

10 (The defendant entered the courtroom. )

11 THE COURT: Mr. Matthews, you did, I thought, a

12 credible job on the suppression motion.

13 It ' s tough to represent yourself . Remember, IP

14 told you about the advantages of having a lawyer and how

15 those -- how lawyers can help you at pretrial and at

16 trial and even post-trial. I also told you about the

17 dangers and disadvantages of representing yourself. And

18 you may experience some of that here while you're

19 representing yourself.

20 So I want to renew my offer to reappoint counsel

21 for you and remind you that it's at no cost to yourself,

22 okay. Will you accept my offer to reappoint counsel?

23 THE DEFENDANT: No, sir. I'm good, sir.

24 THE COURT: Okay. All right. Ms. Barge, where

25 are we with getting this case resolved or to trial? We

4

1 are set for jury selection on January 17th.

2 MS. BARGE: I thought we came back at the

3 defendant's request, Your Honor. I don't have anything

4 else to. . .

5 THE COURT: Okay. All right. Well, let ' s ask

6 Mr. Mathews, then.

7 Do you have any agenda here, matters that need

8 attention by the Court to get ready for trial next

9 month?

10 THE DEFENDANT: No, sir. Not at this time.

11 THE COURT: Okay.

12 THE DEFENDANT: I

13 t

14 THE COURT: Yeah. That ' s what I want to do badly

15 on this. This case is a 2014 case. So it's really one

16 of the oldest cases that we have here in this division.

17 We need to get it tried.

18 MS. BARGE: I was in communication with

19 Mr.. Matthews ' investigator about discovery. He wanted

20 another copy of the FDLE report. I've provided that.

21 And, I mean, I ' ll continue to communicate with his

22 investigator. If he emails me, I'm able to get back to

23 him. I believe he has my contact phone number, as well.

24 So there is nothing else outstanding. What he's

25 requested of me, I've provided to him. And I'm still

5

1 happy to give him anything else he may need that ' s

2 missing, for the defendant.

3 But the State is moving forward, lining up

4 witnesses for trial. And I don't have any other reason

5 to come back.

6 THE COURT: All right. Let's ask Mr. Boykin.

Is there anything that you've been asked to do

8 that you're trying to pursue, Mr. Boykin?

9 MR. BOYKIN: Everything I've been asked to do has

10 been completed already. The State has been helpful in

11 giving me the information.

12 THE COURT: Okay. Well, good deal.

13 Okay. All right. Well, then it's set for jury

14 selection on the 17th. That ' s a Tuesday rather than a

15 Monday because of the Martin Luther King holiday that

16 week. so we'll plan on picking the jury on that

17 Tuesday. And we still should be able to finish the case

18 that week.

19 Don't you think?

20 MS. BARGE: Yes, sir.

21 THE COURT: Okay. And just so we're clear again.

22 We're trying the -- it's a carjacking with a firearm and

23 then also possession of a firearm by a convicted felon,

24 right?


6

1 h THE COURT: And the firearm was one, I guess,

2 found in that car with Mr. Mathews, when he was stopped

3 and arrested?

4 MS. BARGE: Yes. He fled the car, but the gun was

5 fond in that vehicle. Yes.

6 THE COURT: That's right. I remember that.

7 Okay. Yeah. I have a little bit of a better feel

8 for the case than a lot of times I do because of the

9 suppression hearing.

10 Carjacking is a first-degree felony -- I remember

11 that from the David Howard case we had -- so it's

12 punishable by up to 30 years.

'' 13 MS. BARGE: It's a PBL, Your Honor.

14 THE COURT: Yeah. Okay. Because of the firearm

15 involved, right?


17 THE COURT: So it becomes punishable by life.

18 It's not mandatory life; is it? No. Wait, wait. You

19 did say he's a prison releasee reoffender too.


21 THE COURT: So this is -- from your perspective,

22 if you are successful at trial then you'll argue to me

23 that I have to give him life?


25 THE COURT: Okay.

7

.- 1 MS. BARGE: And, Judge, I would tell the Court, I

2 think we will need the whole week. I know you have a

3 lot of cases and I don't know my witness's availabiHtyy

4 yet, but given the amount of witnesses and the fact that

5 this is a pro se trial, I do thing we would need the

6 week.

7 THE COURT: Right. I hear you.

8 Yeah. See. Because I've got that Todd Howell

9 case, the, allegedly, shaken baby case. That ' s going to

10 be difficult. We're talking about doing something with

11 Cutwright. He's on for that same week. Ancí then

12 Dunaway. And Erick White, that ' s that one with Zentner,

13 I think.

14 Okay. So do you want to come back the 4th? Do

15 you want to come back the very first week just to make

16 sure -- we'll see where we are for the trial with

17 witnesses and so forth?


19 THE COURT: Okay. Let ' s do that . Let ' s come back

20 on January 5, okay. And that ' s just a week before

21 the -- I wrote down January 13th for final pretrial.

22 That should be wrong. What do you have?

23 THE CLERK: I have the 13th also.

24 THE COURT: I think that was a mistake.

25 so let's do tnis. Let's set this case for a

8

1 pretrial on January 5, just to check back in and make

2 sure everybody is square with their witnesses. And then

3 we'll put the final pretrial on with the other final

4 pretrials on January 12th, just a week later. And then

5 we'11 stay on track, then, with the January 17th jury

6 selection date.

7 THE DEFENDANT: Well, Your Honor, I just want -- I

8 want to reflect for the record that, you know, by me --

9 by me being a mental health -- due to the fact that the

10 Courts [sic] has just totally disregarded the

11 legislator's intent, you know, by the 35.4 mental health

12 act.

13 And, you know, basically, you know, it would be

14 impossible for me to get a life sentence or 30 years or

15 any of that because the Court is not going by what the

16 . legislator ' s intent -- you know. And, you know, that ' s

17 basically going outside of what the legislator intend

18 [sic] for -- to happen.

19 And, you know, I just -- I just feel like -- I

20 just really fell like, you know, to be honest with you,

21 that the Courts [sic] is just wasting time, you know,

22 patient [sic] and effort with trying to do whatever they

23 gonna do. Because this case is -- there ' s too many

24 errors that done been made that can't be fixed. And,

25 you know, basically, whatever happens and whatever the

9

1 outcome gonna be, I will be back on appeal.

2 But I don't plan on losing. So, you know, I'm

3 just -- I'm just making it clear for the record, you

4 know. So if they feel like they want to try me on this

5 case, you know, it ' s usually -- it ' s usually -- the case

6 is basically useless to go to trial on. That ' s

7 basically what I'm implicating right snow.

8 THE COURT: Okay. All right. Well, we'll see,

9 I heard the matter, and you made your arguments.

10 I did the best I could in the suppression motion. So we

11 got to proceed. So we'11 see what -- we'11 impanel a

12 jury and see if they are convinced that they proved you

13 guilty beyond a reasonable doubt. There's always that.

14 The jury has got to say he's guilty. That's your final

15 check against the authority of the State. So we'll play

16 that out.

17 THE DEFENDANT: Yes, sir.

18 THE COURT:| I thought we had a pretty full

19 suppression hearing. And I think I got that right, but

20 you never know. Also, we ' ve had you evaluated rather

21 thoroughly. So I'm fairly comfortable with that.

22 So, okay, let's proceed.

23· THE DEFENDANT: I also want to say that I need

24 somebody -- I need somebody to come over there to the

25 jail because last night I was brutally attacked by

10

officers, you know. And he jumped on me the kickedy

2 me, they punched me, they tried to break my arm. And

3 you know, I need somebody to come and take some

4 pictures, sir. You know, I need to know what and how to

5 go by the procedures for somebody to come and

6 investigate this matter immediately.

THE COURT: Is there a place, Officer Patten, in

8 the jail where he can file a complaint?

THE BAILIFF: Yes, sir. He has a booklet that

10 they gave him when he first checked into the jail that

11 tells him exactly what to do.

12 THE COURT: Okay.

13 THE DEFENDANT: About somebody coming to take

14 pictures?

15 THE BAILIFF: There ' s nothing in there about

16 taking pictures. No, sir. It tells you who to complain

17 to.

18 THE COURT: Yeah. You can file a complaint in

19 terms of your treatment there at the jail.

20 HE DEFENDANT: Well, I need -- I'm trying to

21 figure out somebody before the swelling go [sic] down

22 and everything. I need somebody to come take some

23 evidence photos.

24 So I'm basically just stating that for. the record

25 30 if I have to go back to the date, you know, for the

11

rd to reflect that, you know, I brought it to the

2 Court [sic] attention that I was assaulted in the jail

3 by the officers and was brutally attacked and nothin

4

5 THE COURT: I would write down -- write down a

6 report.

THE DEFENDANT: Because I really want to press

8 charges against the offic

9 THE COURT: When you're -- while it's all fresh in

10 your mind, write down a report. Write it down on a

Piece of paper. When you go back to the jail, just

12 write it out in as much detail as you can, the names of

13 people, badge numbers, everything else. That way you'll

14 have it for later, okay?

15 THE DEFENDANT: Yes, sir.

16 THE COURT: And then you might submit it to the

17 State Attorney's Office as well as to the Sheriff. And

18 then certainly begin where they tell you to, with a

19 complaints about your treatment in the jail.

20 Ms. Barge, he's filed a demand for speedy trial,

21 November 18th.g D

22 MS. BARGE: N , r. I

23 THE COURT: So that -- within 60 days of the

24 d

25 MS. BARGE: Well, this case is already set for

12

1 trial. I don't believe you can file a demand when the

2 c

3 THE COURT: Is that right?

4 MS. BARGE: That ' s what I believe is the status of

5 the law. The case has been set for trial, upon his

6 agreement, a So then you

7 can't file a demand to try to basically dictate the

8 Court ' s trial calendar and have your case moved up or do

9 something to that effect.

10 So it's already set for trial. If the Court wants

11 to entertain the demand, I didn't know we were going to

12 be doing that today. I could look for that case law and

13 provide it to the Court. But he has a jury selection

14 date. It's on the 17th. It's --

15 THE COURT: Well, we ' ll leave it on for the 5th.

16 If you'd just double-check it, okay?


18 THE COURT: It came to me. I saw it in my office

19 in the last week or so. So just double-check that. If

20 you think you're okay, we'll just stay with the pretrial

21 on January 5th.


23 THE COURT: If you think there's an issue --

24 literally, 60 days would run about the time we would be

13

1 recapture time or within the actual time itself,

2 probably. But it wouldn't give us any leeway. It's not

3 what we would normally like to do.

4 We don't have a lot of options at this point. It

5 would be either next week or we would be moving it up a

6 week. so we can always do that if we have to. But

7 chances are that we are set for trial within the

8 parameters of the law anyway.

9 Mr. Matthews, it's coming soon.

10 THE DEFENDANT: Y

11 THE COURT: All right. We'll see you January 5th.

12 Thank you, Mr. Boykin.

13 MR. BOYKIN: No problem.

14 MS. BARGE: Is the Court striking that demand?

15 What are we doing?

16 THE COURT: N I don ' t know that I have a basis

17 for it. It's just there, okay?

18 MS. BARGE: Okay.

19 THE COURT: So if what you say is correct, we are

20 really in compliance with it. If you want to file a

21 motion to strike it, I'll entertain that J

22 double-check it.

23 MS7 BARGE: Yes, sir.

24 (The proceedings concluded at 11:50 a.m.)

25

14

C E R T I F I C A T E

2 STATE OF FLORIDA )

3 COUNTY OF DUVAL )

4 I, Angela Sass, Court Reporter, certify that I was

5 authorized to and did stenographically report the foregoing

6 proceedings and that the transcript is a true and complete

7 record of my stenographic notes.

8 DATED this 12th day of April , 2017.

9

10

11

12 /s/ Angela Sass13 A S, FPR

14

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EXHIBI Fa.e

Citation/Title731 So.2d 92, 24 Fla. L. Weekly D982, Holmes v. State, (·Fla.App. 1 Dist. 1999)

*92 731 So.2d 92

24 Fla. L. Weekly D982

District Court of Appeal of Florida,First District.

Joseph HOLMES, Appellant,v.

STATE of Florida, Appellee.

No. 97-3899.April 13, 1999.

Defendant was convicted in the Circuit Court, Bay County, Don 'Í'. Sirmon s Jfor burglary of a structure and grand theft, and he appealed. The District ouof Appeal, Lawrence, J. , held that defendant who makes demand for speedy trial icriminal case is entitled to have his case set for trial not less than five dafollowing calendar call.

Reversed and remanded.

West Headnotes

[ l ] Criminal Law 577 . 10 (10 )

110 ----110XVIII Time of Trial

110XVIII (B) Decisions Subsequent to 1966110k577.10 Factors Affecting Application of Requirements in General

110k577.10(10) Demand for Trial.

da 1 arl v a n

wa.t fi days, " must be read in pari materia. West's F.S.A. RCrP Rule

[2] Criminal Law 577.10(10)


110XVIII (B) Decisions Subsequent to 1966

© 2014 Thomson Reuters. No claim to original U.S. Govt. works.

731 So.2d 92, 24 Fla. L. Weekly D982, Holmes v. State, (Fla.App. 1 Dist. 19 9)

110k577.10 Factors Affecting Application of Requirements in General110k577.10(10) Demand for Trial.

Defendant who makes demand for speedy trial in criminal case is entitled tohave his case set for trial not less than five days following calendar callWest's F.S.A. RCrP Rule 3.191(b).

Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public .Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Denise O. Simpson, Assistant AttorneyGeneral, Tallahassee, for Appellee.

LAWRENCE, J.

Joseph Holmes (Holmes) was convicted and sentenced to prison for burglary of astructure and grand theft. He raises two issues on direct appeal. The firstissue relates to the trial court ' s denial of Holmes ' motion to suppress certainevidence. The second issue relates to Holmes ' demand for a speedy trial pursuantto Florida Rule of Crlminal Procedure 3.191. We find no error with respect tothe first issue. We reverse on the second issue however, and remand for a newtrial.

Holmes filed a demand for speedy trial several months after his arrest. Sevendays later, a calendar call was held pursuant to rule 3.191(b), the pertinentprovisions of wh1ch are as follows:

Speedy Trial Upon Demand. Except as otherwise provided by this rule andsub-Ject to the limitations. imposed under subdivisions (e) and (g), every personcharged with a crime by ind1ctment or information shall have the right todemand a trial within 60 days, by filing with the court having jurisdiction andserving on the state attorney a pleading entitled "Demand for Speedy Trial. "

*93. '

express purposes of announcing, in open ansetting the case for trial.

(2) At,.the galend¼racall ¢he..áö ttssha 1 sptnthe paggafor trial toqommenc.e at a exno esFt &h®P Ws%WWWeten an aÿs" róEt e at fthè · caTëñ[aWEa 1 1 . ¯ " ~~~~~�042�042�042�042�042

On the morning of the dalendar call, the trial court set · the case for trial onthe same day, beginning with jury selection in the afternoon, and commencement ofopening stat ements and testimony the following morning. Holmes 'argues on appealthat the trial court erred in setting the case for trial less than five days fromthe date of the calendar call; that he was prejudiced by being unable to securethe attendance of material witnesses for the defense on such short notice; andthat the issue was properly preserved. We agree,


731 So.2d 92, 24 Fla. L. Weekly D982, Holmes v. State, (Fla.App. 1 Dist. 1999)

[1] The State argues that the issue is controlled by subsection (g) of rule3.191, which provides in pertinent part as follows:

Demand for Speedy Trial; Accused Is Bound. A demand for speedy trialbinds the accused and the state. No demand for speedy trial shall be filed orserved unless the accused has a bona fide desire to obtain a trial sooner that-otherwise might be provided. A demand for speedy · trial shall be deemed apleading that t-he accused is available for trial, has diligently investigatedthe case, and is prepared or will be prepared for trial within 5 days.

The State contends that subsection (g) supercedes subsection (b) and, because thetrial commenced on the seventh day after Holmes' demand for speedy trial noerror was committed. We disagree and hold that subsections (b) and (g) of rule3.191 must be read in pari materia.

Florida ' s speedy trial rule was adopted by the Supreme Co.urt in 1971 In reFlor.1da Rules of Criminal Procedure, 245 So.2d 33 (Fla.1971) . The orichinal ruleguaranteed every criminal defendant the right to be brought to trial upon demandwithin s1xty days of filing the demand. It further provided that "demand forspeedy trial shall be deemed a pleading by the accused that he is available fortrial, has diligently investigated his case, and that he is prepared or will beprepared for trial. " Id. at 35. Trial could be set without limitation at anybime during the sixty-day period. Id. at 33-34.

The rule was amended in 1980 by adding the statement that "[t]rial may bescheduled at any time within the 60 day period except that trial may not bescheduled within 5 days of the filing of the demand without the consent of thedefendant and the prosecuting attorney. " The Florida Bar. In re Rules ofCr2m2nal Procedure, 389 So.2d 610, 612 (Fla.1980) . The rule was amended again in1984, to provide. ... .

(2) At the calendar call the court shall set the case for trial to

he n r ca 1------- wu c.i.oa.c cae Flo a Bar Re: Amendment to Rules--Criminal Procedure 462 So.2d 386, 387

[2] Although the two subsections of the rule initially may appear to be inconflict,. after considering the history of Florida's speedy trial rule it isclear that 1t was 1ntended that a defendant who makes a demand for a speedy trial ·in a criminal case is entitled to have his case set for trial not less' than fivedays following the calendar call. The trial court therefore erred in settingHolmes' case for trial on the same day as the calendar call.

Accordingly, we reverse and remand for a new trial.

BOOTH and DAVIS, JJ. , CONCUR.


EX HtBTPage 1

Citation/Title862 So.2d 863, 28 Fla. L. Weekly D2842 Will2003) ' iams v. State, (Fla.App. 4 Dist.

*863 862 So.2d 863

28 Fla. L. Weekly p2842

District Court of Appeal of Florida,Fourth District.

Allister O. WILLIAMS, Petitioner,v.

STATE of Florida, Respondent.

No. 4D03-2830.Dec. 10, 2003.

Background: Af ter the Seventeenth Judicial Circuit CMichael L. Gates, J. , denied defendant ' s motion f dgrounds, defendant sought writ of prohibition band unauthorized possession of identification ca riv s 11 se el a. s

�042 Holding: The Districti Court of Appeal held that· statdefendant to trial within 15 days of fil . to Mngtrial required discharge. ing of notice of expiration of speedy

Writ of prohibition granted.

c West Headnotes

Criminal Law 577 . 10 (10 )

110 ----110XVIII Timh of Trial

110XVIII (B) Decisions Subsequent to 1966

7 1 t 1

(See headnote text below]

Criminal Law 577 . 15 (4)


110XVIII (B) Decisions Subsequent to 1966110k5'77 . 15 Length of Delay

© 2014 Thomson Reuters. No claim to original U.S. Govt. wo rks.

862 So.2d 863, 28 Fla. L. Weekly D2842, Williams v. State, (Fla.App. 4 Dist.

110.k57'7 .15 ( 4 ) Subsequent to accusation.

Defendant whose trial date was not scheduled until 124 day after he was

charged with grand thef t and unauthorized possession of identification card/drivers license charges was entitled to di schatlrat îal ourt did not hold rgcEkiEgd pdar 1 w1 n f t ay r

¼ e an(toW

r . Buschel of Buschel Carter Schwartzreich & Yates, Fort Lauderdale, for

Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A Trin aliAssistant Attorney General, West Palm Beach, for respondent.

PER CURIAM.

Petitioner, Allister Williams, was charged on January 16, 2002, with randtheft and unauthorized possession of identification card/drivers' licensePetitiioner filed a motion for discharge pursuant to *864 Florida Rule ofCrlminal Procedure 3.191(b) . The trial court denied his motion. He no seeks awrit prohibiting further prosecution. Because the speedy trial period' adexpired and no delay áttributable to the accused was shown, we grant the writ ahdremand the matter to the trial court for an order discharging petitioner.

Florida ' s speedy trial rule is embodied in Florida Rule of Criminal PËocedure3.191. Subsect1on (b) of this rule authorizes an accused to demänd a triialwithin s1xty days from indictment ok charging information by filing a de'mand forspeedy trial. The trial court mgt then.hold a calendar call within fipe days atwhich time it must set the case for trial to be held within five to forty.-five

o e P)

Subsecti (p) permits the accused to file a notice of expiration of s eedy

tria.L ta.me. The trial court must... then.. hold. a hearing within five days and orderthe accused brought to trial within ten days unless the court finds thatl one ofthe reasons set forth in subsection (j) exists. Under subsection (j) thh cotirtdoes not have to order an accused be brought to trial within ten days if thecourt has previously ordered an extension that has not yet expired, the delay in .holding the trial has been caused by the accused, co-defendant or their counselthe accused was unavailable for trial, or. the demand for speedy trial is invalich.Assuming none of these circumstances exist, the trial court must order theaccused brought to trial within ten days. If not brought to trial withi i thisperröd, the accused is entitled to be discharged upon appropriate motion providedthe delay is not attributable to the accused. See Fla. R.Crim. P. 3.191(p).

© 2014 Thomson Reuters. No claim to original U.S. Govt. wo:Eks.

862 So.2d 863, 28 Fla. L. Weekly D2842, Williams v. State, (Fla.App. 4 Dist.2003)

On January 15, 2003, a year after being charged by information, petitionerfiled his demand for speedy trial with the presiding judge pursuant to rule3.191(b). On March-5, 2003, the presiding judge transferred the case to asuccessor Judge. On March 13, 2003, the successor judge set the case for a May19, 2003 jury trial. Petitioner filed his notice of expiration of speedy trialon March 18, 2003, pursuant to rule 3.191(b) . The parties appeared before thesuccessor Judge at his 8:30 a.m. calendar call on May 19, 2003, and petitionermoved the court for his discharge. The State briefly explained that no hearingwas ever held within five days because the case was in transit between the twocourtrooms. The court did not delve into the merits of petitioner's claim, butpostponed this matter until the following day.

At the next day's hearing, petitioner's counsel informed the court that hefiled his demand for speedy trial on January 15, 2003, but no calendar call hadbeen held within five days as rule 3.191(b) (1) required. He further explainedthat after he filed a notice of expiral-lon of speedy trial on March 18, 2003 theoriginal Judge scheduled a hearing within five days, but when both partiesappeared in h1s courtroom, the judge determined that the successor judge shouldhear the matter and suggested defense counsel call the successor judge's officeto schedule petitioner's five-day hearing. Counsel explained that he left adetalled message but that the successór judge's office never called him back.

The trial court did not hold the required 'calendar call within five da s aft rpetitioner filed his dem r s ee . . ee a. .Crim. . .191(b) (1)Nor 1 e State bring petitioner to trial within fifteen days of when he filedhis notice of expiration of speedy trial. The court scheduled Petitioner ' s trialfor May 19, *865. 2003. The parties appeared before the successor judge on thatdate. By thls time, 124 days had elapsed from the date petitioner filed hisdemand for speedy trial. The State, however, was not ready to commence trial onthat date and petitioner moved for his discharge.

The State should have monitored the judicial logistics of the accused'sprosecution more attentively so as to ensure that it complied with therequirements of rule 3.191. It was the State's duty to bring petitioner to trialwithin the prescribed time period; consequently, petitioner's motion fordischarge should have been granted. See Stuart v. State, 360 'So.2d 406(Fla.1978) (it is the State, ·and no.t the defendant, that has the obligation tosee that the time periods within the rule are followed) ; Massey v. Graziano, 564So.2d 287 (Fla. 5th DCA 1990) ( "Under the current speedy trial rule, the dutyrests on the State to afford a defendant a hearing, and, if necessary, a trialwithin the w1ndow period provided by rule 3.191. The State's failure to performthis duty results in the trial court ' s loss of jurisdiction to conduct a trial onthe charges . " ) .

PETITION GRANTED; REMANDED TO TRIAL COURT WITH DIRECTIONS.


862 So.2d 863, 28 Fla. L. Weekly D2842, Williams v. State, (Fla.App. 4 Dist.

FARMER, C. J. , KLEIN and SHAHOOD, JJ. , concur.

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