Lozano v. State

District Court of Appeal of Florida

Lozano v. State

202 So. 3d 148, 2016 Fla. App. LEXIS 15248

CourtDistrict Court of Appeal of Florida

DecidedOctober 14, 2016

Docket2D15-4715

StatusPublished

Cited by2 cases

This text of 202 So. 3d 148 (Lozano v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lozano v. State, 202 So. 3d 148, 2016 Fla. App. LEXIS 15248 (Fla. Ct. App. 2016).

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Opinion

PER CURIAM.

Jose Guerrero Lozano appeals the order summarily denying his motion alleging ineffective assistance of counsel under Florida Rule of Criminal Procedure 3.850. We affirm, in part, reverse, in part, and remand for further proceedings.

In his motion, Lozano ai-gued that his trial counsel was ineffective for failing to assert both his procedural and his constitutional speedy trial rights. The postcon-viction .court correctly denied Lozano’s claim with regard to his speedy trial rights under Florida Rule of Criminal Procedure 8.191; the record contains numerous requests for cqntinuances by counsel. See State v. Burgess, 153 So.3d 286, 288 (Fla. 2d DCA 2014) (“Generally, a defense request for a continuance waives the right to speedy trial.” (citing Banks v. State, 691 So.2d 490, 491 (Fla. 4th DCA 1997))); see also State v. Abrams, 350 So.2d 1104, 1105 (Fla. 4th DCA 1977) (“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.”) (first citing McArthur v. State, 303 So.2d 359 (Fla. 3d DCA 1974); then citing Brown v. State, 328 So.2d 497 (Fla. 3d DCA 1976))).

The postconviction court, however, failed to address Lozano’s claim of ineffective assistance of counsel for failure to assert his constitutional right to speedy trial. See State v. Naveira, 873, So.2d 300, 308 (Fla.2004) (“Once the speedy trial rule has been waived, it is supplanted by the constitutional speedy trial period which is measured in tests of reasonableness and prejudice, not specific numbers of days.” (quoting Blackstock v. Newman, 461 So.2d 1021, 1022 (Fla. 3d DCA 1985))); Gamble v. State, 996 So.2d 946, 947 (Fla. 2d DCA 2008) (citing Naveira, 873 So.2d at 308).

Accordingly, we reverse the postconviction court’s order insofar as it failed to address Lozano’s claim concerning his constitutional speedy trial right and remand for the court to address that claim. If the postconviction court determines that the claim is facially insufficient, the court should strike it with leave to amend within sixty days. See Fla. R. Crim. P. 3.850(f)(2).

Affirmed, in part, reversed, in part, and remanded.

LaROSE, MORRIS, and SLEET, JJ„ Concur.

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PER CURIAM.

Jose Guerrero Lozano appeals the order summarily denying his motion alleging ineffective assistance of counsel under Florida Rule of Criminal Procedure 3.850. We affirm, in part, reverse, in part, and remand for further proceedings.

In his motion, Lozano ai-gued that his trial counsel was ineffective for failing to assert both his procedural and his constitutional speedy trial rights. The postcon-viction .court correctly denied Lozano’s claim with regard to his speedy trial rights under Florida Rule of Criminal Procedure 8.191; the record contains numerous requests for cqntinuances by counsel. See State v. Burgess, 153 So.3d 286, 288 (Fla. 2d DCA 2014) (“Generally, a defense request for a continuance waives the right to speedy trial.” (citing Banks v. State, 691 So.2d 490, 491 (Fla. 4th DCA 1997))); see also State v. Abrams, 350 So.2d 1104, 1105 (Fla. 4th DCA 1977) (“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.”) (first citing McArthur v. State, 303 So.2d 359 (Fla. 3d DCA 1974); then citing Brown v. State, 328 So.2d 497 (Fla. 3d DCA 1976))).

The postconviction court, however, failed to address Lozano’s claim of ineffective assistance of counsel for failure to assert his constitutional right to speedy trial. See State v. Naveira, 873, So.2d 300, 308 (Fla.2004) (“Once the speedy trial rule has been waived, it is supplanted by the constitutional speedy trial period which is measured in tests of reasonableness and prejudice, not specific numbers of days.” (quoting Blackstock v. Newman, 461 So.2d 1021, 1022 (Fla. 3d DCA 1985))); Gamble v. State, 996 So.2d 946, 947 (Fla. 2d DCA 2008) (citing Naveira, 873 So.2d at 308).

Accordingly, we reverse the postconviction court’s order insofar as it failed to address Lozano’s claim concerning his constitutional speedy trial right and remand for the court to address that claim. If the postconviction court determines that the claim is facially insufficient, the court should strike it with leave to amend within sixty days. See Fla. R. Crim. P. 3.850(f)(2).

Affirmed, in part, reversed, in part, and remanded.

LaROSE, MORRIS, and SLEET, JJ„ Concur.

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