410 So. 2d 559 | Fla. Dist. Ct. App. | 1982
The state appeals an order discharging appellee for violation of his constitutional right to a speedy trial. We reverse.
Appellee was arrested in February of 1976 on a felony charge. After several defense continuances, appellee was brought to trial before a jury in July of 1977. On the eve of trial, appellee attempted to discharge his privately retained counsel on the ground that counsel was incompetent and unprepared. The trial court refused to grant a further continuance to permit substitution of counsel because the attorney whom he sought to have replaced was the third one to have represented appellee at that point. Appellee’s conviction was upheld on appeal.
The essential basis upon which the trial court granted appellee’s motion for discharge was the delay of approximately one year due to the state having unsuccessfully appealed from the trial court order of November, 1979, which had vacated the original judgment. The trial court felt that the appeal was frivolous and taken primarily as a dilatory tactic to permit the state to secure attendance at trial of one of its principal witnesses who was then out of the country.
At the time the state took its appeal from the court order of November of 1979 vacating the judgment, it was the law in this jurisdiction that a defendant could not contest the competency of privately retained counsel, Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967), a position which had been uniformly followed and applied by the appellate courts of this state.
At the time the state appealed from the order vacating the judgment, it was not frivolous. While the state did obtain the benefit of the additional time within which to secure the attendance of its out-of-country witness, the record will not support the trial court’s conclusion that the state’s primary purpose in taking the appeal was to obtain this advantage.
As an additional factor, the trial court, in ordering the discharge of appellee, surmised that had appellee not voluntarily dismissed his federal habeas corpus petition in reliance upon the state’s indication that it would not take the appeal,
REVERSED.
. Blakley v. State, 362 So.2d 309 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1362 (Fla.), cert. denied, 444 U.S. 904, 100 S.Ct. 218, 62 L.Ed.2d 141 (1979).
. State v. Blakley, 388 So.2d 1106 (Fla. 4th DCA 1980).
.A number of the cases are cited in the supreme court’s opinion in Vagner v. Wainwright, 398 So.2d 448 (Fla.1981).
. The court found that the state did not intentionally mislead appellee’s counsel in order to get him to voluntarily dismiss the federal habe-as corpus action.