McMullen v. State

District Court of Appeal of Florida

McMullen v. State

331 So. 2d 357, 1976 Fla. App. LEXIS 14161

District Court of Appeal of Florida·Decided May 5, 1976·No. No. Z-402·Published·Cited by 2 cases

Opinions

BY THE COURT.

The State adduced sufficient evidence to constitute a prima facie showing, pursuant to Rule 3.191(e), Florida Rules of Criminal Procedure, that the accused made himself unavailable for trial by failing to respond to a notice of arraignment regularly mailed to him. In the circumstances of this case, the trial court was not obliged to accept as conclusive the accused’s denial that he received the notice of arraignment. Contrast State ex rel. Kennedy v. McCauley, 265 So.2d 547 (Fla.App. 4th, 1972). The trial court was therefore justified in its conclusion that the accused need not be discharged under the speedy trial rule. The judgment and sentence are therefore

AFFIRMED.

MILLS and SMITH, JJ., concur. BOYER, C. J., dissents.

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BY THE COURT.

The State adduced sufficient evidence to constitute a prima facie showing, pursuant to Rule 3.191(e), Florida Rules of Criminal Procedure, that the accused made himself unavailable for trial by failing to respond to a notice of arraignment regularly mailed to him. In the circumstances of this case, the trial court was not obliged to accept as conclusive the accused’s denial that he received the notice of arraignment. Contrast State ex rel. Kennedy v. McCauley, 265 So.2d 547 (Fla.App. 4th, 1972). The trial court was therefore justified in its conclusion that the accused need not be discharged under the speedy trial rule. The judgment and sentence are therefore

AFFIRMED.

MILLS and SMITH, JJ., concur. BOYER, C. J., dissents.

McMullen v. State, 331 So. 2d 357, 1976 Fla. App. LEXIS 14161 (Fla. Ct. App. 1976).

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