State v. BonamyState v. Bonamy
STATE of Florida, Appellant,
v.
Melvin Burnett BONAMY, Appellee.
District Court of Appeal of Florida, Fifth District.
Jim Smith, Atty. Gеn., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellant.
Joseph W. DuRocher, Public Defender, and Glenn Klausman, Asst. Public Defender, Orlаndo, for appellee.
COBB, Judge.
This case requires interpretation of a defendant's right to speedy trial as measured by constitutional, as oppоsed to procedural, standards.
The defendant, Melvin Bonamy, was arrested on April 15, 1980, and charged with burglary of a dwelling. The case was originally *519 set for trial on August 13, 1980. On that day, the defense moved for a continuance on the ground that three of the state's witnesses had failed to appear for pre-trial depositions. It was not shown that these witnesses had been properly subpoenaed by the defense for such depositions. Even if they were, it is well settled that it is not the responsibility of the state to produce witnesses subpoenaed by the defense for discovery purposes. State v. Roig,
The trial court granted the defense motion for continuance without making any determination, as requested by the defense, that the continuance be charged against the state. As a matter of law, it was chargeable against the defense and, once granted, rendered inapplicable the 180-day limitation set forth in Florida Rulе of Criminal Procedure 3.191(a)(1). Butterworth v. Fluellen,
The trial was then rescheduled some four or five times, at the request of the state, at brief intervals in October and November, 1980. On Nоvember 4, 1980, Bonamy filed a motion for discharge claiming violation of the 180-day speedy trial rule which he had waived by his own motion the preceding August. This motion was never heard for reasons not clarified by this record. Finally, on March 24, 1981, Bonamy filed an additional motion to discharge, alleging a violation of his constitutional right to a speedy trial. This motion was granted by the trial court on April 27, 1981, and this is the order being appealed by the state.
The Sixth Amendment speedy trial сlause does not become applicable until the defendant is either arrested or indicted. United States v. Lovasco,
The dispositive cаse which controls the issue of constitutional speedy trial is Barker v. Wingo,
The first element of Barker, the length of delay, is merely a threshold triggering mechanism. A court need not inquire into the other factors unless there has been a delay of such length as to be "presumptively prejudicial." United States v. Edwards,
The second element of Barker is the reason for the delay. There may be a variety of reasons for a delay. Good reasons include: (a) a complex case, (b) widely scattered witnesses, (c) absence of a witness, and (d) illness of a witness. Neutrаl reasons include overcrowded court dockets. Bad reasons include a deliberate delay by the state. Barker; United States v. Katz,
The third element of Barker is whether the defendant asserted his right. It would be a rare case in which a defendant had been denied his constitutional speedy trial if the defendant never asserted his right to be speedily tried. Barker. There are many times when the defendant does not want to be tried. This is often the situation where a defendant wants to wait and see what the outcome is of the separate trial of one of his co-defendants on the belief that if his co-defendant is found innocent then hе himself will probably never be tried. For example, see United States v. Tercero,
Finally, the fourth element of Barker is the prejudice to the defendant. Prejudice may first result frоm oppressive pre-trial incarceration which could result in the loss of the defendant's job, disrupt his family, and hinder him in the preparation of his defense. Second, a defendant may suffer anxiety and concern due to public scorn and the chilling effect that a pending trial may have on his freedom оf association. Third, and most importantly, there is the possibility that the defense will be impaired due to fading memories and lost evidence. Barker. In the case at hand, the defendant was let out on bond so that there was no oppressive pre-trial incarceration. Nor did the defendant show a factual bаsis for any other prejudice. A defendant must do more than simply allege that memories fade or that evidence may be lost. He must come forth and shоw that some particular witness that would have been helpful to his case has actually forgotten the facts or that some particular witness that wоuld have been helpful to his case has actually been lost. See United States v. McGrath,
In summary, Bonamy had a delay of about one year from the date of his arrest. Part of thе early delay was due to Bonamy's motion for continuance. The latter delay was due to a crowded court docket and busy prosecutors with сonflicting trial schedules. Bonamy never filed a demand for speedy trial, was not incarcerated during the delay, and he failed to show any prejudicе to his case resulting from the trial delay.
In the majority opinion authored by Justice Powell in Barker, we find the following commentary:
We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution.
In the instant case, Bonamy relied upon only one of the four factors enumerated in Barker: the length of time between arrest and trial. If that factor, standing alone, is insufficient and Barker clearly states that it is then the trial court erred in ordering his discharge without consideration of the other factors and the balancing process required in Barker.
*521 Accordingly, the order of discharge is reversed and this cause remanded for trial.
DAUKSCH, C.J., and COWART, J., concur.