State v. Velazquez

802 So. 2d 426, 2001 Fla. App. LEXIS 17440, 2001 WL 1575688
CourtDistrict Court of Appeal of Florida
DecidedDecember 12, 2001
DocketNo. 3D01-1062
StatusPublished
Cited by1 cases

This text of 802 So. 2d 426 (State v. Velazquez) 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.

Bluebook
State v. Velazquez, 802 So. 2d 426, 2001 Fla. App. LEXIS 17440, 2001 WL 1575688 (Fla. Ct. App. 2001).

Opinion

SORONDO, J.

In State v. Guzman, 697 So.2d 1263 (Fla. 3d DCA 1997), Chief Judge Schwartz, writing for the majority, said:

It seems that nothing we do or say, even in the harshest terms, has much effect on the speedy trial games people play in the Eleventh Circuit.

Id. at 1265, n. 1 (citation omitted). He went on to characterize these games as “Mickey Mousing.” We regret to say that Mickey is back.

On March 10, 2000, Juan Velazquez, defendant, was charged with battery on a law enforcement officer, resisting an officer with violence, depriving an officer of means of protection or communication, attempt to deprive an officer of means of protection or communication, unlawful possession of cannabis and tampering with or fabricating physical evidence. Defendant hired private counsel, Nelson T. Pena, who immediately began to prepare the case for trial.

On September 1, 2000, defendant filed a demand for speedy trial. On the same morning, the state announced a nolle pros of the case. In keeping with rule 3.191(b)(1), Florida Rules of Criminal Procedure, the case appeared on the court’s calendar on September 5, 2000. The prosecutor who had handled the case was no longer assigned to that division and was not present; neither was defense counsel. Upon calling the case, the trial judge was reminded that the case had been nolle prosed and he took the case off the calendar.

Thereafter, the state reconsidered its earlier decision to nolle pros and appointed a new prosecutor to review the file and consider refiling the charges. Concerned about possible speedy trial problems, the new prosecutor checked both the computerized court docketing system, Sieges, and the court file’s docket sheet. Neither one reflected the filing of a demand for speedy trial.1

Given these findings, and further determining that defendant asked for and was granted a continuance in June 2000, the state re-opened its investigation of the events that originally led to the filing of charges and ultimately refiled the case. Defendant was rearrested, arraigned on the new charges and the case was set for trial. On March 2, 2001, defendant filed a motion for discharge claiming that the speedy trial period provided by rule 3.191(b) had expired.

[428]*428The language of rule 3.191(g) specifically provides:

No demand for speedy trial shall be filed or served unless the accused has a bona fide desire to obtain a trial sooner than otherwise might be provided.

(Emphasis added). The state argued that defendant did not have a “bona fide desire to obtain a trial” at all, since he knew when he filed the demand that the case was to be nolle prosed a few minutes later.

After conducting an evidentiary hearing, wherein both prosecutors and defense counsel testified, the trial judge concluded that defendant was ready for trial on September 1, 2001, and that the state should have refiled the case within the speedy trial demand period. The judge found that the September 5th hearing should have put the state on notice that a demand had been filed.

The state never challenged the suggestion that defendant was ready for trial on September 1, 2000. Rather, it argued that defendant did not have a “bona fide desire to obtain a trial sooner than otherwise might have been provided.” We agree with the state and find that the record is unmistakably clear that defendant did not have the bona fide desire to go to trial required by the rule. A detailed review of events follows.

After filing his appearance, defense counsel began earnest discussions with the assigned prosecutor regarding the merits of the state’s case. His efforts were apparently effective as the prosecutor ultimately approached her superiors to seek permission to nolle pros the case.

During this time, counsel conducted discovery and filed pleadings. These pleadings were either mailed, hand-delivered or faxed directly to the prosecutor handling the case. At some point in time, defense counsel was told by the prosecutor that the case was being placed on the court’s calendar on Friday, September 1, 2000, for announcement of a nolle pros.

Knowing full well that the case was to be nolle prosed on the morning of September 1, 2000, an act that would obviate the need for a trial, defense counsel instructed his investigator to file a demand for speedy trial in the clerk’s office and at the state attorney’s office immediately before the court hearing was scheduled to be held. The demand was filed with the state at 9:09 a.m., and with the clerk at 9:21 a.m. Although counsel had always dealt with the assigned prosecutor, mailing or faxing pleadings to her directly, the certificate of service on the demand does not identify the prosecutor handling the case. It certifies service only to the “Office of the State Attorney,” and was served at the State Attorney’s general intake desk or office, thus insuring that it would be more difficult for the document to find its way to the prosecutor handling the case.2

Shortly after his investigator had filed defendant’s “stealth” pleading, defense counsel appeared in court to witness the announcement of the nolle pros. Immediately after the state’s announcement, he said:

Your Honor, I personally thank [the prosecutor] at 9:45, on today’s date, for all her efforts to seek the truth. Thank you.

(Emphasis added). The hypocrisy of this statement is perceptible only when viewed in the light of all the facts. What appears to be an innocuous reference to the time of day, was, in fact, defense counsel making [429]*429his record to establish that he had planted his “land mine” before the announcement of the nolle pros.

For several reasons, it is absolutely clear that counsel never intended to try this case and that the demand was not filed with a bona fide desire to accelerate the trial date. First, he knew when he filed the demand that the state was about to voluntarily dismiss the case and that no trial would be possible. Second, he could have spared himself the expense of hiring an investigator by filing the demand in open court immediately upon arriving in court that morning. This would have brought the matter to the judge’s personal attention and enhanced the likelihood of an accelerated trial date, had one been needed. Finally, by bringing the pleading to court, he would have delivered the pleading directly to the prosecutor thus advising her that he wanted to put an end to the case one way or another.

The failure to certify service to the assigned prosecutor in this case was not only unprofessional and discourteous, it evinces a specific intent to have the pleading fall through the cracks at the state attorney’s office.3 By September 1st, counsel had been dealing with the prosecutor for more than five months. On all previous occasions defense counsel had provided copies of his pleadings directly to the assigned prosecutor. All indications are that the prosecutor, Liza Granoff, had behaved honorably. Indeed, in keeping with her obligation to seek justice, she had gone the extra mile in trying to do the right thing.4 The very least one could have expected from defense counsel was adequate notice of filed pleadings to the prosecutor he knew to be responsible for the case.

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Related

Dixon v. State
901 So. 2d 384 (District Court of Appeal of Florida, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
802 So. 2d 426, 2001 Fla. App. LEXIS 17440, 2001 WL 1575688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-velazquez-fladistctapp-2001.