defense counsel was ineffective in not moving to dismiss the charge under the speedy trial the appellate court's decision was wrong and it should be reversed for two reasons first the judgment should be reversed because the defendant affirmatively waived concluding the defense counsel provided and if i could assistance counsel failure to seek a speedy trial dismissal could not possibly have an error because there was no speedy trial violation starting with the waiver argument this is the himself raised the possibility that his feet counsel attorney ford will and may have provided ineffective assistance and then the trial court in compliance with the procedures that this court outlined in the nets and crank a line of cases appointed a new attorney attorney garza for the specific purpose of looking into the possibility that the original counsel had made a mistake that an attorney garza consulted with to find it specifically about the ineffective assistance know well we know from the record the court specifically said i'm appointing attorney garza to look into ineffective assistance and then attorney garza said in the presence of defendant and in the presence of the original defense counsel i've talked to both the defendant about this ineffective assistance claim and i've talked to original counsel and defendant will not be raising and ineffective assistance claim and defendant has never disputed attorney garza's representation  through attorney garza defendant affirmatively waive that claim specifically telling the court he would not be pursuing the ineffective assistance claim based on these facts which are not disputed the trial court or the appellate court found that the trial court quote gave the defendant the opportunity to raise an ineffective assistance claim but the defendant quote chose not to do so and instead specifically informed attorney garza quote that he did not wish to pursue that claim by choosing not to pursu court does not have and also defeats the very purpose of the procedure outlined in it's incredible which is to appoint a new conflict free attorney to allow the expeditious resolution of a potential ineffective assistance claim at the trial court level to seek a speedy trial dismissal in fact there was no speedy trial violation in this case for two separate reasons the first reason there was no speedy trial dismissal is the defendant never made a speedy trial demand under the new kordell case under the amended version of the speedy trial act there is no speedy trial violation in a case where the defendant never demands a trial that's what happened here no speedy trial demand so under the statute all delay was agreed to and judgment the last reason justifying reversal is that the second charge was essentially the same as the first charge for speedy trial purposes the same charges the same in all respects except for the name that of attached to the offense conduct the first charging instrument called the offense by its pretty two thousand and three name which was reckless homicide involving dui the second instrument called it by its post two thousand and three name aggravated d but the elements and the stated penalties for each charge were exactly the same as this court explained in the gam car's decision all that the two thousand and three amendment did was to reach characterize the conduct that had been called  reckless homicide involving dui and rename it aggravated dui the amendment retained the the sentencing structure of three to fourteen years of imprisonment here because all of the second charging instrument did was to reach characterize the sam situation well i don't think there what the mistake here would be limited to the name of the offense and the critical points would be the elements of the i would say limit well what matters for killing another person while driving drunk the name was changed and that was all the elements were the same as the court setting cars and the penalties were the same this might be a different case of the defendant had made any argument that he was confused about the penalty or the elements or that he didn't have notice but he's never made that argument and it's the notice factor that that determines whether or not a second charge is going to be a a new an additional specifically said it was a class it was a three felony subject to special sentencing which is the fourteen year maximum and then when the defendant negotiated the cleargreen he agreed to a twelve year cap which would only make sense if he understood the maximum to be fourteen years and then when he entered the plea agreement the court specifically admonished him that there was a fourteen year maximum so there defender has never made any type of argument that he didn't have sufficient notice of the second charge and on those record he couldn't possibly make that argument so that because of the the porton thing about that the difference in the indictment is is does the defendant have notice and so here where there's no notice problem the second charge was really just a correction of a formal error and it doesn't make a difference for speedy trial purposes it's not a new an additional charge under woodrum so because the second charge was essentially the same as the first just under a different name the defendant's valid plea to the original charge waived his speedy trial rights with respect to that charge and with respect to the second charge because it was really the same so the identity between the two charges is another morning i mean please the court counsel chris white from the office of the state of public the funder on the hearing on behalf of the defendant cravin phillips we ask that you affirm the judgment of the appellate court in vacate mr fitz this conviction for aggravated driving under the influence and i think it's important to remember here at this case arose out of state error the state filed the wrong charge the state thought it could get twelve years by charging the defendant with reckless homicide in the state was wrong should have been amended prior to finding the charge the legislature had amended the reckless homicide statute to remove the enhancing provision making it a class to follow me if the death were involved but vet reckless homicide remains a valid charge at that point the defendant entered a plea to that charge the defendant was sentenced or i'm sorry was not sentenced on a charge but he has by the way done the complete sentence for that charge  think council was really ineffective in two different ways one of those ways as you say i think is not pushing for a cap of five or i believe in his case ten years because i think he's extended all based upon priors which would make it ten  years the kept me through walls remained on the a grade a dui charge as far as when we went into the negotiations had the state at that point caught on that this was a different charge i think that it at that point counsel became ineffective as well as for allowing the defendant counsel for the state it had mentioned that that reply post conviction counsel had been appointed for the defendant but there's no indication that it dealt with this issue this it appears from the record that  the defendant's complaint regarding speedy trial was the speedy trial concerns he had with the reckless homicide charge and the delay that it took from the time he was charged until the time you know that he had been sentenced and not so much on  all the subsequent driving the influence charge which was really no delay at that point because you've been charged by the state with aggravated dui and at that point been sentenced within a couple of days so i don't think that was the defendant's fact you know sort of the state saw hyperbolic language in the reply brief aside there's no evidence whatsoever that defense counsel here acted in any way in appropriately other than ineffective mr white was there any p well i think so because he was sentenced to a greater charge greater class charge and he's now doing a greater sentence for reckless homicide which has a higher higher sentencing range than the earlier i earlier reckless homicide than you've been charged with so he's doing more years in prison than he otherwise would and he's already done the maximum sentence on the reckless homicide so it's not as if he's walking away free here he's done the maximum  was it before or after he moved with doctor i believe it was before four but i i'm not certain that because i don't believe it dealt with that later charge so on in effect the only player here not expected to know the intricacies of these developments was the defendant who has been since prejudiced because of the change the statute but also with respect to the waiver just as freeman question i think you know waiver is a voluntary relinquishment of a known right there was as i said earlier i don't think that there's anything indicating here that the defendant knew what the consequences of this just change w because i think everyone was operating under the misconception that this was some sort of scrivener's error that just change the statutes were in fact it's not actually adds change just substantively the two the two statutes the state and the descent down below at the apollo level seemed to make a great deal out of the wardrobe case but i don't think that that's really applicable here because woodrum dealt with indeed the very same charge would one was a child abduction then i think it is because i think there are not only are they different classes they're different causation elements recklessness deals with obviously the reckless the reckless way in which one conducts himself in driving as opposed to the alcohol where the causation of the death is the result of alcohol consumption and i think that that makes these two difference not only is it different classes and where it is you know as we mentioned as was mentioned earlier  offense but without that sentencing provision the statute is still valid and that's the statute to which the defendant plug and i think it's as cars pointed out with respect to  to reckless homicide it was not the same offense the reckless homicide and when it was when it was amended for the purposes of allowing the defendant to a lax so i think you know here the difference custody from the date of the incident and i think all the time then would go against the state during the period at which it had made these errors and charge him with a different offense and as a result of that  offenses all the time as part of the charge bargaining so there's no need here to analyze the indictment in isolation and figure out what charges at stake because we have two additional factors we have the clear agreement that the defendant negotiated with his attorney with a twelve year cap which only makes sense if he knew he was really subject to the fourteen year sentence which he actually was and we also have the plea hearing where the defendant was admonished about the fourteen year ca so it's clear from looking at the indictment in conjunction with the plea agreement and the plea hearing that the defendant was pleading guilty to the offense which was in essence killing someone while driving drunk the only difference is the name here and there  defendant was admonished correctly that the charge had a fourteen year gap a fourteen year maximum sentence and that was accurate the only problem was that the fence was called by the wrong name so that the second plea wasn't really necessary territories that's true and if this was a case where a defendant had somehow been confused and thought that he was pleading to the current version of reckless homicide which has a different elements and has a lower statutory maximum this would be a different case but the both parties and the court seem to agree that it was the same substantive offense it was just called by the wrong name that's the only difference so  been some kind of an you know notice argument like that that he didn't know what he was pleading to be very hard to make after he participated in a police hearing where he acknowledged the fourteen year statutory maximum i believe just as carmen asked a question about when the defendant first raised the possibility that as a national council might have been ineffective it was after the second plea and it was actually after the post judgment motions had been filed and  there was a motion to withdraw the cli and to reconsider the sentence it was just a boilerplate sort of motion saying i didn't understand the admonishments nothing specific about defense counsel so it was after the post urgent mission stage  believe defense counsel made the point that there's no waiver because there's no voluntary relinquishment of a known right because there's nothing on the record specifically showing that the parties considered a speedy trial claim that's not the standard  the defendant's the right at stake here is the six some right to the effective assistance of counsel and it's clear from the record that the defendant did understand he had that right he's the one who brought it up the court said that he had that right in the course specifically said he was appointed a new attorney to look into that possibility and find it doesn't need to there doesn't need to be a record showing every potential theory that was investigated here just like when a defendant pleads guilty the guilty pleas valid even if the defendant didn't specifically know about maybe every defense that he might have raised if it's made with the assistance of competent counsel the waiver is valid what defined it needs to do is attack the validity of the waiver he could have argued that attorney god as it was ineffective in waiving my claim but he hasn't made that argument so the waiver stands i believe defense counsel also made a point that everyone was under the misunderstanding that the reckless homicide defense had somehow been invalidated by this court's decision and are a couple of stray remarks in the record that are a little bit imprecise but i think the fair reading of the record is that both parties in the court understood exactly what happened the court put the public decision on the record and the court said that decision invalidated part of the reckless homicide statute it's just implausible to think that the judge and both parties were aware of that decision and then didn't understand what actually happened i think a fair reading same maybe it is a different in that the charge was exactly the same in that case and in this case that the name of the charge was different but the rule motivating the wider moral is a notice concern you know that an amended charge is relevant if the defendant is caught off guard and there's a danger of a trial by ambush on a new and more serious charge there can't be that kind of argument here one because the second charge was not more serious to define it was admonished the first leave at the maximum was fourteen years just as that the second plea and the elements were not different so there can be no notice argument and that's what the woodrum role turns on so the second charge was not new an