#### STATE of Florida, Appellant, v. Christopher BECKETT, Appellee.

No. 77-247.

District Court of Appeal of Florida, Second District.

March 31, 1978.

Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant.

Jack 0. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellee.

OTT, Judge.

The state seeks reversal of the lower court’s order discharging appellee under the speedy trial rule, Fla.R.Crim.P. 3.191. I agree and reverse the order of discharge.

On July 15, 1976, appellee was arrested for attempted burglary and possession of burglary tools. Under Fla.R.Crim.P. 3.191(a)(1) the speedy trial time period for a felony is 180 days. An information was not filed until September 8, 1976. Finally, on January 10, 1977 appellee was brought to arraignment. Only seven days of the delay from arrest to arraignment were attributable to the appellee. At arraignment the appellee requested and obtained an order allowing a ten-day extension of the time to file motions attacking the sufficiency of the information. (Fla.R.Crim.P. 3.190(c) normally requires such motions to bq made on or before arraignment.) The state’s concurrent motion to toll the speedy trial period during this extension was summarily denied by the trial court. Either by coincidence or design, the last day of the 10-day extension — January 19, 1977 — was also the first day after the applicable speedy trial period (calculated without any effect of the 10-day extension on the speedy trial time prescribed by Fla.R.Crim.P. 3.191). On January 20, 1977 the appellee’s motion for discharge was filed. Prior to the hearing on the motion for discharge, the state filed, and was heard on, its motion to advance the trial date to a time within the speedy trial period (calculated with the speedy trial time being increased by the appellee’s 10-day extension). The lower court felt that the state’s motion was an attempt to “circumvent” the motion for discharge and denied *449the motion to advance the trial date. The motion for discharge was subsequently granted.1

Florida Rules of Criminal Procedure, Rule 3.190(g), defines a continuance as “postponement of a cause for any period of time.” If a continuance or delay is attributable to the accused and is not excused, a pending motion for discharge shall, on motion by the state, be voidable by the court in the interest of justice provided that trial be scheduled and commence within 90 days. Fla.R.Crim.P. 3.191(d)(3).2

In the instant case, the trial court granted appellee an additional ten days in which to file a motion to dismiss. We hold that this extension amounted to a continuance or delay by the appellee contemplated by Fla. R.Crim.P. 3.191(d)(3), effectively halted prosecution of the ease and extended the speedy trial time accordingly. It would be inconsistent for the trial court to allow the state to try the defendant within the ten days. The specific language of Fla.R. Crim.P. 3.191(d)(3) states that “[i]f a continuance or delay is attributable to the accused and is not excused, the pending motion for discharge shall on motion by the State be voidable by the court in the interests of justice; provided, however, trial shall be scheduled and commence within 90 days.” Accordingly, the January 20 motion to discharge should have been denied and the state allowed 90 days within which to bring the appellee to trial.

The order of discharge is reversed and set aside and the cause remanded for further proceedings consistent herewith.

BOARDMAN, C. J., concurs specially with opinion.

SCHEB, J., dissents with opinion.

1

. The trial had been set for March 8. The state moved on January 21 to assign the case to another circuit judge for trial on January 27. This would have satisfied the speedy trial rule in that the seven-day delay plus the ten-day extension moved the 180th day from January 11 to January 28.

2

. This situation is distinguishable from that where a specific and unconditional waiver is made in writing. *See Thompson v. Mitchell,*353 So.2d 664 (Fla.2d DCA 1978).

BOARDMAN, Chief Judge,

concurring specially.

The speedy trial rule provides that an accused must be brought to trial within 180 days of being taken into custody on a felony charge or on motion by the accused be discharged if he was continuously available for trial for that period of time. Fla.R. Crim.P. 3.191(a)(1). Subsection (e) clearly provides that during the time an accused is not available trial is stayed. In the typical case, running of the speedy trial rule period is tolled by the stay. *See*Fla.R.Crim.P. 3.191(e). The only exceptions to discharge after expiration of the 180-day period applicable to a felony offense are (1) a waiver of the rule by the accused which takes him out of the requirements of speedy trial codified in Rule 3.1911 and (2) an extension of that period by order of the court which leaves the accused within the strictures of the rule.2

The period within which to bring the accused to trial may be extended beyond that set out in the rule for “excusable” delays in proceeding to trial which were precipitated either by the actions of the state or of the accused. *See*Fla.R.Crim.P. 3.191(d)(2). If due to the state’s unexcused actions trial is not commenced during the period prescribed by the rule plus any reasonable extensions ordered for excusable delays, the accused is entitled to be discharged. *See*Fla.R.Crim.P. 3.191(d)(3). If trial is not timely commenced because of an unexcused delay attributable to the ac*450cused’s action, his motion for discharge will be denied.3 Fla.R.Crim.P. 3.191(d)(3).

I agree with Judges Ott and Scheb that at the time the motion for discharge was filed the speedy trial rule period had not expired by virtue of the ten-day allowance granted appellee from January 10 to January 19. Because Rule 3.190(c) provides that the defense of insufficiency of the information is waived unless it is challenged before or at arraignment, the ten-day allowance in which to file a motion attacking the sufficiency of the information had the effect of rendering appellee unavailable for trial as a result of his request.

The facts of the case before us, like the facts underlying several of the appellate decisions resolving speedy trial rule problems, do not fit any one provision or section of Rule 3.191. Although I believe that an extension for ten days would have been authorized under 3.191(d)(2), I do not base my decision on this point. My analysis of this problem is bottomed on what I believe is the threshold question in determination of an accused’s entitlement to discharge for failure of the state to comply with the speedy trial rule, which simply stated is: Was the accused available for trial for the prescribed period. Due to appellee’s unavailability, running of the period was tolled from January 10 to January 19, and the speedy trial period would not have expired as it otherwise would have on January 19. Accordingly, it is not necessary to determine whether the action was excused or unexcused since the delay was accounted for by tolling.4

Appellee was available for trial after January 19, and the speedy trial period began running again on January 20 and should have expired on January 29. However, a second obstacle thwarted commencement of trial prior to January 29. On January 20 appellee’s attorney filed a motion for discharge based on his calculation of the expiration date as January 19 and scheduled a hearing on this motion for January 31. This panel’s common conclusion that the speedy trial rule period had not expired as of the time the motion was filed rendered the motion for discharge premature on that date and ineffective until it matured upon expiration of the period. *See*Fla.R.Crim.P. 3.191(d)(1). The trial court’s denial of the state’s motion to advance the trial originally scheduled for March 8 to a date within the period was predicated on this motion for discharge and what it termed the state’s attempt to circumvent the speedy trial rule.5

Although in this case the premature filing of the motion for discharge ultimately proved to effectively render appellee unavailable for trial during the remainder of the speedy trial rule period, I am reluctant to conclude that the accused would be unavailable for trial as contemplated by 3.191(a)(1), (e) by filing the motion prematurely. Nonetheless, since appellee’s counsel had scheduled a hearing on the motion after the January 29 expiration date and since the trial court was determined to dispose of the motion for discharge before considering any further activity in this case, *451it is clear that an extension of the speedy trial period was necessary.

Subsequent to entry of the order of discharge, the state moved for an extension of the speedy trial period to allow for appeal of that order. The trial court granted an extension until the time it received the mandate of the appellate court. This was responsive to the state’s Rule 3.191(d)(2) motion. Where, as in this case, however, the appellate court reverses an order of discharge and remands for trial, the state is allowed ninety days from receipt of that mandate to commence trial. *See State v. Anglin,*333 So.2d 502 (Fla.2d DCA 1976); Fla.R.Crim.P. 3.191(g).

1

. The accused’s right to a speedy trial under the constitutional guarantee of trial within a reasonable time is not affected by a waiver of the speedy trial period set out by the Florida rules of procedure.

2

. Discussion of the speedy trial rule is somewhat obscured by reference on occasion to “charging” an extension either to the accused or to the state. The scheme set out by the speedy trial rule does not contemplate that extensions of the speedy trial period are to be assessed against one party or the other.

3

. Several sections of the rule imply that an unexcused delay constitutes a waiver of the speedy trial rule. A motion to discharge constitutes a demand for speedy trial within ninety days where the motion is denied due to the unexcused actions of the accused. *See*Fla.R.Civ.P. 3.191(d)(3).

4

. Tolling of the running of the period or an extension of the period obviously has the same effect and there is no meaningful distinction between them in a situation such as the one we are considering. Nonetheless, in some instances the difference between tolling and an extension is significant. While an extension requires an order by the trial court the rule implies that tolling is an automatic result of the accused’s unavailability.

5

.Under these circumstances it may well have been that a trial held before January 29 would not have afforded appellee his right to a fair trial. However, this does not affect the speedy trial issue raised by this appeal. See *Sumbry v. State,*310 So.2d 445 (Fla.2d DCA 1975). Judge Grimes suggested in a special concurrence in *Sumbry*that where due to the state’s conduct it is necessary that the trial court grant the accused a continuance beyond the speedy trial period to protect his right to a fair trial, it would not necessarily follow that an extension of the speedy trial rule would be mandated.

SCHEB, Judge,

dissenting.

I respectfully dissent.

I am not persuaded that the ten days granted to appellee to file motions attacking the information amounted to a continuance under Fla.R.Crim.P. 3.191(d)(3). This subsection says in part:

> If a continuance or delay is attributable to the accused and *is not excused,*the pending motion for discharge shall on motion by the State be voidable by the court in the interest of justice; provided, however, trial shall be scheduled and commence within 90 days. (Emphasis added.)

The majority views the time granted as a continuance, and, therefore, implicitly finds the ten-day delay was “not excused” within the meaning of the Rule. If the record supported this implicit finding, I would concur in the majority opinion; however, I cannot find that it does.

Here the public defender was officially appointed to represent appellee on January 10, 1977, the day on which appellee was arraigned before the Honorable John H. Shearer, Jr., Circuit Judge. The public defender requested and Judge Shearer granted a ten-day period for the defense to attack the sufficiency of the state’s information.

Florida R.Crim.P. 3.191(d)(2) states:

> The periods of time established by this Rule for trial may at any time be waived or extended by order of the court . (iv) a period of *reasonable and necessary delay*resulting from proceedings *includ- ■ ing but not limited*to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pre-trial motions, for interlocutory appeals, and for trial of other pending criminal charges against the accused. For the purposes of this Rule, any other delay shall be unexcused. (Emphasis added.)

Under the circumstances, I think the public defender’s request was “reasonable and necessary.” I, therefore, conclude that the ten-day period granted by the court was excusable and did not constitute a continuance under (d)(3).

When Judge Shearer granted the ten-day period to the public defender, the state requested that the speedy-trial time be “tolled.” I interpret this to mean that the state felt it was entitled under (d)(2) to have ten days added to the period of time in which it was allowed to bring appellee to trial. Judge Shearer denied the state’s request. I think this denial was error. The granting of the ten-day period to file motions attacking the information effectively precluded the state from bringing appellee to trial, since the ten-day period was all that remained of the speedy-trial time. It would be senseless to expect the state to bring a defendant to trial when he is still in a position to attack the charges upon which the trial is based.1

If the speedy-trial time had been extended by ten days, as I suggest it should have been, it would have expired January 29, 1977, instead of January 19. Then appel-lee’s motion for discharge, made on January 20, would have been premature and should have been held in abeyance until after expiration of the speedy-trial time as extended, *i.e.,*January 30. Fla.R.Crim.P. 3.191(d)(1).

*452On January 21 the state moved to reassign the case to another circuit judge, Honorable Jack R. Schoonover, for trial on January 27. The assistant state attorney who filed the motion stated that Judge Schoon-over had personally informed him of his availability to hear this case on that day. The state’s motion came on for hearing before Honorable Thomas W. Shands, Circuit Judge, on January 24. At that time Judge Shands refused to grant the motion for reassignment and advancement because appellee’s motion for discharge was pending. Judge Shands made no determination at that point as to whether a trial judge was available to hear the case on the date requested by the state. I think this was also error, since appellee’s motion for discharge was, in effect, filed prematurely.

Another question remains: Could appel-lee have been required to go to trial by having his trial date advanced on such short notice? The state by its own inaction cannot force a defendant to choose between accepting a speedy trial and thereby waiving his right to discovery and preparation of his case, or waiving speedy trial and thereby obtaining the right to discovery and preparation. See *State*v. *Yawn,*320 So.2d 880 (Fla. 1st DCA 1975). The trial court did not answer this question.

In sum, I would hold it was an abuse of discretion by the trial court not to extend the speedy-trial time for at least the ten-day period granted appellee to file motions after his arraignment. I would remand to the trial court to determine whether a trial judge was available to try the case on January 27, and, if so, whether appellee could have reasonably been expected to go to trial on that date. If these questions were answered affirmatively, appellee should be scheduled for trial. If either were answered negatively, then appellee should be discharged.

1

. In most instances an arraignment occurs nearer the beginning of the speedy-trial time. There the trial judge must be given considerable discretion in deciding if the speedy-trial period is to be extended or not.