State v. AbramsState v. Abrams
Appellant, State of Florida, seeks review of a trial court order granting appellee-defendant, Walter Abrams’ motion for discharge. We reverse.
Abrams was found guilty after a jury trial and sentenced to ten years imprisonment for robbery. On appeal, Abrams’ conviction was reversed by this court and remanded for new trial, as reported at 326 So.2d 211 (Fla. 4th DCA 1976). While a private attornеy had initially represented Abrams, the public defender was appointed to prosecute the appeal. On remand, private сounsel was served notice of Abrams’ new trial date, at which time he moved to withdraw from the case, which motion was granted. The minutes of the hеaring reflect that the trial judge expressed an intention to enter a written order appointing the public defender, and directed the clerk to notify the public defender‘s office to represent Abrams. Although the record does not reflect any written order of appointment of the public defender entered at
Upon the expiration of ninety days after the mandate was forwarded by this court to the trial court directing a new trial be granted, Abrams moved to be discharged pursuant to
The question presеnted by this appeal is whether the trial court erred in granting appellee‘s petition for discharge.
The principle is well established thаt the right to a speedy trial is waived when the defendant or his attorney request a continuance. The acts of an attorney on behalf of a client will be binding on the client even though done without consulting him and even against the client‘s wishes. McArthur v. State, 303 So.2d 359 (Fla.3d DCA 1974); Brown v. State, 328 So.2d 497 (Fla. 3d DCA 1976).
In the instant case, a public defender was appointed to prosecute Abrams’ appeal, pursuant to which the conviction was reversed. As a public defendеr was validly appointed to act as Abrams’ attorney, and the benefits of the public defender‘s representation were accеpted by Abrams, an attorney-client relationship was established which did not terminate upon the order for a new trial. The existence of an attorney-client relationship was never questioned until Abrams sought to be discharged for failure to be brought to trial within ninety days after the reversal of his conviction on appeal, contrary to
Acсordingly, the order of discharge is reversed, and the cause remanded for further proceeding.
Reversed and remanded.
ALDERMAN, C.J., concurs specially, with opinion.
DOWNEY, J., dissents, with opinion.
ALDERMAN, Chief Judge, concurring specially:
I concur and additionally point out that thе defendant did not know that the public defender was purporting to represent him until after his return to Palm Beach County on June 4, 1976. At that time the ninety day period had not expired. The mandate had been received by the trial court on March 16, 1976; therefore, the ninety days allowed under
The trial judge, the state attorney and the public defender were acting in good faith. The continuance was believed by them to be on behalf of, for the benefit of, and in the best interest of the defendant.
DOWNEY, Judge, dissenting:
If appellee had known the Public Defender was purporting to represent him after the Mandate came down and stood silently by until the speedy trial time had expired, I would agree the order of discharge should be reversed. However, the record before this court demonstrates that appellee had nо such knowledge. Thus, the Public Defender‘s representation of appellee in the trial court and the two continuances which the Public Dеfender obtained were unauthorized and should not be binding upon appellee.
This position seems somewhat technical perhaps, but after the appeal was concluded the services for which the Public Defender was appointed were concluded and аppellee then had three options. He could, if indigent, request the Public Defender to handle his new trial, he could represent himself, or hе could employ private counsel. As far as appellee knew nothing was done so it is impossible to attribute any estoppel оr waiver to the appellee. He knew nothing of the Public Defender‘s proposed appointment (which was never effectuated), nor of the Public Defender‘s activity on his behalf. When he first learned the Public Defender was purporting to represent him appellee аdvised the Public Defender he did not desire his counsel.
Therefore, I feel compelled to affirm the trial court‘s order discharging appellee under the Speedy Trial Rule.