Lasker v. ParkerLasker v. Parker
Christine Lasker and Donna Morse have petitioned this court for writs of prohibition alleging that the respondent judges have proceeded in violation of
The facts from that point on are not a subject of complete agreement. It appears that the prosecutor communicated with Lasker‘s counsel by telephone on April 9 and stated that the case would be called for trial on April 13. It further appears that because the trial date was represented by the prosecutor to have been scheduled for only five days after the filing of the motion for discharge, he volunteered the opinion that no hearing on that motion was necessary. Lasker‘s counsel objected to any refusal to set a hearing and “communicated to the caller his obvious unpreparedness for trial” since discovery requests had not yet been fulfilled. On April 13, 1987, the prosecutor wrote to the trial judge advising that Lasker‘s counsel was “abandoning his procedural [speedy trial] claim” and was intending to request a continuance of Lasker‘s trial. On April 20 Lasker countered with a written objection to this letter; Lasker‘s trial was nevertheless rescheduled for June.
The prosecutor also telephoned Morse‘s attorney on April 13 and advised him that a hearing on the motion for discharge was not necessary because the court “would schedule the case for trial within the next several days.” Morse‘s trial, however, was not set until June 15, 1987, and was to be preceded by a June 10 hearing scheduled for pending motions, presumably including the motion for discharge. Without consulting counsel the court prepared its schedule on April 14, on which date defense counsel was out of his office and unavailable. On April 15, believing trial was set for that day, Morse‘s counsel communicated with the prosecutor, expressed his unpreparedness and objected to the lack of notice. Based on this telephone call the prosecutor wrote to the judge that defense counsel “stated that it was not his intention in filing the motion [for discharge] that a trial start within 10 days” and that he would abandon his argument. Morse‘s counsel responded in writing to the judge stating that the prosecutor‘s letter did not accurately reflect the conversation between them. This letter had no effect.
The first question which surfaces in this matter is whether a hearing on a facially sufficient motion for discharge is absolutely essential. Under the speedy trial rule as it existed prior to 1984, a defendant who had not contributed to the delay of his trial was entitled to outright discharge once the 180-day deadline expired. Under the pre-1984 rule, unless the state was prepared to concede the issue, a hearing would have been conducted to determine whether the facts justified the defendant‘s discharge. The rule was amended, however, to allow the state an opportunity to bring the defendant to trial within fifteen days of the date of filing of the motion for discharge. Gordon v. Leffler, 495 So.2d 200 (Fla. 5th DCA 1986), rev. denied, 503 So.2d 327 (Fla. 1987); but see Ricci v. Parker, No. 87-1954 (Fla. 2d DCA September 4, 1987) [12 F.L.W. 2143]. The rule in its present form provides that:
No later than 5 days from the date of the filing of a motion for discharge, the court shall hold a hearing on the motion, and unless the court finds that one of the reasons set forth in section (d)(3) exists, shall order that the defendant be brought to trial within 10 days. If the defendant is not brought to trial within the 10 day period through no fault of the defendant, the defendant shall be forever discharged from the crime. (emphasis supplied).
Under the peculiar facts of this case we are not persuaded that there was a waiver of speedy trial regardless of what counsel may have said to the prosecutor during the telephone conversations. This is not to say that a waiver of speedy trial must always come directly from the defendant; it may be undertaken by counsel. Smith v. State, 482 So.2d 521 (Fla. 2d DCA 1986). There must, however, exist some record to support a finding that counsel did intend a waiver or that he acquiesced in a trial date beyond the speedy trial limit. See, e.g., Saunders v. State, 436 So.2d 166 (Fla. 2d DCA 1983). A state attorney‘s “understanding” that a defense continuance was requested has been deemed to be insufficient evidence of a waiver. Black v. State, 468 So.2d 457 (Fla. 3d DCA 1985). Analogously,
The state draws our attention to the petitioners’ eleventh hour demand for discovery and to counsel‘s objections to the first suggested trial date based on a lack of preparedness. The state contends that a motion for discharge is itself a representation that the defendant is ready for trial and if he is not, the demand for discharge is a nullity. Thus, says the state, the instant matter is distinguishable from George v. Trettis, 500 So.2d 588 (Fla. 2d DCA 1986), which involved a timely demand for discovery with belated compliance by the state. This argument fails.
Under
In the matter before us there is little to indicate that Lasker and Morse were prepared to go to trial immediately, a fact which the state emphasizes. The state was not compelled to furnish discovery until it was requested. The rules of criminal procedure, however, do not authorize discovery until after the filing of an indictment or information.
In sum, while we have concluded that a hearing on a motion for speedy trial discharge may not be necessary in all cases, one should have been held in the matter before us in order to determine who was responsible for the inability of Lasker and Morse to receive a trial within the time limits prescribed in
The petitions for writs of prohibition are granted and the trial court is directed to enter an order discharging Lasker and Morse. There is no need for us to respond to the contentions based on the constitutional right to a speedy trial and it is not necessary to discuss the implications of the state‘s failure to file an information until well after the 175-day speedy trial period expired.
The petitions are granted.
RYDER, A.C.J., and LEHAN and FRANK, JJ., concur.