Martin v. State

449 So. 2d 939, 1984 Fla. App. LEXIS 13164

Opinions

PER CURIAM.

Appellant challenges the denial of his motion for discharge, predicated upon a violation of the speedy trial rule, 3.191, Florida Rules of Criminal Procedure.

Rule 3.191(d)(2) provides that speedy trial time may be extended by order of court or upon stipulation, either written or announced to the court. The record in this cause reflects no court order or stipulation.

The State correctly points out that a waiver may be proved by other means. However, herein no contemporaneous record activity supports the trial judge’s recollection, as was the case in Redden v. State, 429 So.2d 99 (Fla. 2d DCA 1983), nor did the state present the testimony of the attorney who purportedly waived speedy trial on appellant’s behalf, see, Culver v. State, 416 So.2d 855 (Fla. 1st DCA 1982).

We hold that the State failed to present sufficient competent evidence to demonstrate that appellant, either in person or by counsel, waived speedy trial. Therefore, we reverse the trial court’s order denying appellant’s motion for discharge and remand this cause with instructions to enter an appropriate order discharging appellant.

REVERSED and REMANDED.

DELL and WALDEN, JJ., concur. HERSEY, J., dissents with opinion.