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Dixon v. State5/11/2005
Before GREEN, RAMIREZ, and SUAREZ, JJ.
Appellant/Defendant, Cliff Ross Dixon, appeals from a Circuit Court order denying his petition for writ of prohibition to bar trial and argues that the trial court improperly denied his motion to discharge under the speedy trial rule. Fla. R. Crim. P. 3.191. We find the defendant did not delay the orderly prosecution of his case and did not waive his speedy trial rights. We reverse and remand for discharge.
On November 21, 2001, Cliff Ross Dixon ("Dixon") was arrested and charged with driving under the influence . On February 20, 2002, the ninety-first day following arrest, Dixon filed a Notice of Expiration of Speedy Trial ("NOE"). The NOE was heard on the fifth day of the hearing window, February 25, 2002, wherein the State conceded that the NOE was well taken. At the hearing, the Court, and both parties, agreed that the trial would take place on March 4, 2002, five days prior to the running of the speedy trial period. On February 26, 2002, the day after the NOE hearing, the case was called for sounding. Dixon and his defense counsel failed to appear and the Court issued a bench warrant. Both State and defense now agree that for some reason unknown to either party, neither Dixon nor his defense counsel was informed of the sounding date. On February 27, 2002, the day after the sounding, the clerk's office mailed notices of cancellation of the March 4, 2002 trial date to all parties due to Dixon's failure to appear at the sounding and the issuance of the bench warrant. Defense counsel received the notice of cancellation prior to the March 4, 2002 trial date.
On the morning of March 4, 2002, in an abundance of caution, defense counsel appeared in the courtroom. Defense counsel confirmed that Dixon's case was not scheduled for trial by checking the docket and by checking with the court clerk. Defense counsel then left the courthouse. In the afternoon of March 4, 2002, the prosecutor appeared in the courtroom ready for trial. The trial judge remarked that defense counsel was seen in the courtroom earlier that day. The trial judge then instructed the prosecutor to call the prosecutor's office. The prosecutor called defense counsel and advised him that the Court and State were present and ready for trial. Defense counsel claims that the prosecutor did not state that the prosecutor was ordered by the court to call defense counsel to appear for trial. Defense counsel advised the prosecutor that he was at the courthouse earlier and confirmed that Dixon's case was not on the court calendar nor was it registered with the clerk as being scheduled for trial. Defense counsel did not return to the courthouse that day. The matter was not reset for trial during the remaining five days available for trial prior to the running of the speedy trial period.
On March 18, 2002, after the speedy trial period had run, defense counsel filed the motion for discharge. On March 28, 2002, the trial court denied the motion. The trial court reasoned that the defense attorney should have recognized that the clerk's office made a mistake in issuing the notice of cancellation. Furthermore, the Court felt that when the prosecutor telephoned defense counsel on March 4, 2002, defense counsel should have assumed that the prosecutor was acting as an officer of the court, and was under a court order to do so with the authority to instruct the defendant to appear at trial or, otherwise, be considered unavailable.
Dixon then filed a petition for writ of prohibition seeking permanent discharge based on violation of his right to speedy trial, which was denied. Dixon timely appealed the Circuit Court's denial of the petition for writ of prohibition. We reverse
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