District Court of Appeal of Florida, Fifth District.
Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellant.
Richard S. Rhodes, Orlando, for appellee.
COWART, Judge.
The State appeals an order discharging appellee under the speedy trial rule, Florida Rule of Criminal Procedure 3.191, as it existed prior to its amendment effective January 1, 1981.[1]
*449 This case was on a docket set for trial the week of March 23, 1981, which was near the end of the speedy trial period. On that date an associate of appellee's defense counsel appeared before the trial court, and when the court indicated an intent to set this case for trial on the 24th, stated that defense counsel would be out of town until the 24th and would prefer the case be tried on the 25th or 26th. Pursuant to this statement, the court put trial off until the 25th. On the 25th the State requested a continuance because a key witness was unavailable for trial. The State's motion for continuance was granted and the case postponed to a time which was beyond the speedy trial rule period. The trial court granted appellee's motion for discharge under the speedy trial rule and the State appeals.
We agree with the State's contention that the request of defense counsel's associate on March 23 to set off the trial from the 24th to the 25th constituted a motion for a continuance waiving appellee's speedy trial rule rights under Butterworth v. Fluellen, 389 So. 2d 968 (Fla. 1980), as any defense request to postpone a case for any period of time, whatever called, constitutes a motion for a continuance waiving speedy trial rule rights under Butterworth. State v. Brown, 394 So. 2d 218 (Fla. 5th DCA 1981).
REVERSED and remanded for further proceedings.
COBB and SHARP, JJ., concur.
[1] The Florida Bar, In re Rules of Criminal Procedure, 389 So. 2d 610 (Fla. 1980); See Holmes v. Leffler, 411 So. 2d 889 (Fla. 5th DCA 1982).
