Shuman v. State

District Court of Appeal of Florida

Shuman v. State

347 So. 2d 696, 1977 Fla. App. LEXIS 16153

CourtDistrict Court of Appeal of Florida

DecidedJune 10, 1977

DocketNo. DD-146

StatusPublished

This text of 347 So. 2d 696 (Shuman 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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Shuman v. State, 347 So. 2d 696, 1977 Fla. App. LEXIS 16153 (Fla. Ct. App. 1977).

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Opinion

BOYER, Chief Judge.

After entering a plea of nolo contendere, specifically reserving the right to appeal, Shuman challenges the trial court’s order denying his motion to dismiss founded upon the ground that he was denied due process because of the failure by the state to “speedily prosecute”. The trial court, without entertaining defendant’s proffer, denied the motion to dismiss citing United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and United States v. Zane, 489 F.2d 269 (5th Cir. 1973).

[697]*697An examination of the record reveals that appellant’s motion to dismiss alleged prejudice “as a result of the delay”. Indeed, the allegations of the motion are substantially the same as those considered by this Court in State v. Griffin, 347 So.2d 692, Opinion filed this date. Accordingly, pursuant to Griffin, this ease is reversed and remanded with directions that the trial court grant an evidential hearing on the allegations contained in the motion to dismiss. As we held in the Griffin case, however, in order for appellant to prevail on his motion to dismiss he must prove substantially more than the mere passage of time between the date of the alleged defense and the date of commencement of prosecution. He must address the factors discussed in that case, which were not intended to be exhaustive, particularly his allegation of prejudice.

We do not by this opinion hold that any of those factors have been established, but only that appellant is entitled to an opportunity so to do.

IT IS SO ORDERED.

RAWLS and SMITH, JJ., concur.

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BOYER, Chief Judge.

After entering a plea of nolo contendere, specifically reserving the right to appeal, Shuman challenges the trial court’s order denying his motion to dismiss founded upon the ground that he was denied due process because of the failure by the state to “speedily prosecute”. The trial court, without entertaining defendant’s proffer, denied the motion to dismiss citing United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and United States v. Zane, 489 F.2d 269 (5th Cir. 1973).

[697]*697An examination of the record reveals that appellant’s motion to dismiss alleged prejudice “as a result of the delay”. Indeed, the allegations of the motion are substantially the same as those considered by this Court in State v. Griffin, 347 So.2d 692, Opinion filed this date. Accordingly, pursuant to Griffin, this ease is reversed and remanded with directions that the trial court grant an evidential hearing on the allegations contained in the motion to dismiss. As we held in the Griffin case, however, in order for appellant to prevail on his motion to dismiss he must prove substantially more than the mere passage of time between the date of the alleged defense and the date of commencement of prosecution. He must address the factors discussed in that case, which were not intended to be exhaustive, particularly his allegation of prejudice.

We do not by this opinion hold that any of those factors have been established, but only that appellant is entitled to an opportunity so to do.

IT IS SO ORDERED.

RAWLS and SMITH, JJ., concur.

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347 So. 2d 696, 1977 Fla. App. LEXIS 16153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shuman-v-state-fladistctapp-1977.

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