IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

WILLIE CROCKETT,                        NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D15-1745

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed September 6, 2016.

An appeal from the Circuit Court for Alachua County.
David P. Kreider, Judge.

Nancy A. Daniels, Public Defender, and Victor Holder, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Michael Schaub, Assistant Attorney
General, Tallahassee, for Appellee.




WOLF, J.

      Appellant raises a number of issues on appeal.          We find one issue is

dispositive and requires reversal.       Appellant asserts the State violated his

constitutional right to a speedy trial when it prosecuted him over eight years after it
filed the information against him. Based on the unique facts of this case, we agree

and reverse.

                                       I. Facts

      The State filed a nine-count information against appellant on August 1,

2005, alleging charges that included burglary while armed with a firearm and home

invasion robbery in Alachua County, Florida. Appellant, who had been on parole

in Georgia, was arrested in Georgia on August 10, 2005, for violating his parole by

committing these new law violations in Florida as well as new law violations in

Georgia and technical parole violations. His parole officer saw him the next day

and orally advised him of all of the various charges against him; however, she did

not serve him with any paperwork.

      Appellant pled guilty to the technical violations of his parole and was re-

sentenced to incarceration in Georgia. Appellant remained incarcerated in Georgia

until his sentence expired nearly eight years later on June 14, 2013, at which point

the State served an arrest warrant on appellant for his Alachua County charges. It is

unclear whether the State ever entered a detainer for appellant; there is no detainer

in the record.

      Six months after his 2013 arrest in Florida, appellant filed a motion alleging

the delay in prosecution violated his constitutional right to a speedy trial. Nearly a

year passed before the evidentiary hearing on the motion was heard.

                                          2
      During the evidentiary hearing, the State alleged appellant should have

requested a speedy trial in Florida while he was incarcerated in Georgia. Counsel

for appellant contended that though appellant was informed by his Georgia parole

officer about the Florida charges against him, he was never formally served with

any documentation such as the information or evidence that a detainer had been

lodged against him. Without proof that appellant had been advised of a detainer

against him, defense counsel claimed appellant could not have been expected to

follow the guidelines of requesting his own extradition pursuant to the Interstate

Agreement on Detainers Act.

      This claim was corroborated by the testimony of appellant’s Georgia parole

officer, who stated that she orally informed appellant of the Florida charges against

him but did not provide him with paperwork and did not advise him of the steps he

should take to resolve the Florida charges against him because she was not familiar

with the Florida justice system.

      During the hearing, appellant alleged the delay in his prosecution had

prejudiced him; he presented evidence that both an alibi witness and an eyewitness

to the alleged crime who had stated appellant was not the perpetrator could no

longer be found. It was also established that all of the physical evidence in the

case had been destroyed because of the State’s negligence, including evidence

from which DNA might have been obtained. The trial court denied appellant’s

                                         3
motion to dismiss; it found the delay in prosecution was caused by a negligent lack

of diligence by the State, but also found the State’s lack of diligence did not impair

appellant’s ability to present his defense, as appellant could still present his

familial alibi witnesses.

      On April 15, 2015, appellant pled nolo contendre to home invasion robbery

with a firearm and was sentenced to five years’ imprisonment, but he reserved his

right to appeal the denial of his motion to dismiss.

                                     II. Analysis

      Appellant claims his Sixth Amendment right to a speedy trial was violated

when the State prosecuted him eight years after filing the information against him.

The Sixth Amendment guarantees defendants the right to a speedy and public trial;

however, “[u]nlike other procedural rights, it is ‘impossible to determine with

precision when the right [to speedy trial] has been denied,’ as it cannot be said

definitely ‘how long is too long in a system where justice is supposed to be swift

but deliberate.’” Niles v. State, 

, 663 (Fla. 1st DCA 2013) (quoting

Barker v. Wingo, 

, 521 (1972)).

      Based on the amorphous nature of the inquiry, to determine whether a

defendant’s constitutional speedy trial right has been violated, a court must look to

the totality of the circumstances on a case-by-case basis. Howell v. State, 

1164, 1171 (Fla. 1st DCA 1982). The United States Supreme Court has

                                          4
delineated four factors to guide the determination of whether the constitutional

speedy trial right was violated: “(1) the length of the delay, e.g., whether the delay

is presumptively prejudicial; (2) the reason for delay; (3) whether the appellant has

timely asserted his rights; and (4) the existence of actual prejudice as a result of the

delay.” 

407 U.S. at 530-33). “The test is one in which each

factor is balanced against the others.” 

court found appellant’s constitutional speedy trial right had not

been violated, although the length of the delay – eight years – was presumptively

prejudicial, because (1) the delay was not intentional, but rather, negligent; (2)

appellant failed to timely assert his right to a speedy trial; and (3) appellant was not

prejudiced by the delay.

      “Generally, the determination of whether a defendant’s constitutional right

to a speedy trial has been violated presents a mixed question of law and fact.”

. We review the trial court’s factual findings under the

competent substantial evidence standard of review and its legal conclusions de

novo. 

unique circumstances of this case, we hold the State violated

appellant’s constitutional speedy trial right and reverse the trial court’s denial of

appellant’s motion to dismiss. In coming to this conclusion, we consider each of

the four factors presented in Barker. We outline those factors below.




                                              5
                                 A. Length of Delay

      The State conceded that the eight-year delay between the filing of

appellant’s information and his continued prosecution was substantial and

presumptively prejudicial. Thus, this factor should weigh against the State.

                                 B. Reason for Delay

      The trial court found the State’s negligence was the reason for the delay in

prosecution, but did not weigh this factor heavily against the State in part because

the trial court also found appellant failed to timely assert his right to a speedy trial

and thereby contributed to the State’s continued delay in prosecuting him. The trial

court did not explicitly note how the State was negligent; however, the only

negligent act by the State was its failure to timely file a detainer against appellant,

which would have informed him of his right to have his Florida charges resolved in

a timely manner.

      The State has a duty to act with due diligence to secure the speedy return of

prisoners held in other states. Edmaiston v. Neil, 

, 498 (6th Cir.

1971); Hoskins v. Wainwright, 

, 71-72 (5th Cir. 1971). The first step

the State must take to secure such a speedy return is to lodge a detainer against the

defendant in the state in which the defendant is incarcerated. A detainer “‘is a

request filed by a criminal justice agency with the institution in which a prisoner is

incarcerated, asking the institution either to hold the prisoner for the agency or to

                                           6
notify the agency when release of the prisoner is imminent.’” Moore v. State, 

, 612 n.1 (Fla. 4th DCA 2014) (quoting Gethers v. State, 

, 507 (Fla. 2003)). “Detainers informally put officials on notice that the

defendant is wanted in another jurisdiction.” 

.

      Pursuant to the Interstate Agreement on Detainers Act, once a detainer has

been lodged against a defendant, the warden or other official having custody of the

prisoner “shall promptly inform the prisoner of the source and contents of any

detainer lodged against him or her and shall also inform the prisoner of his or her

right to make a request for final disposition of the indictment, information, or

complaint on which the detainer is based.” § 941.45(Art. III)(c), Fla. Stat. (2004).

It is through this notice of a detainer that the defendant is informed of his right to

request a speedy trial on the pending out-of-state charges.

      Here, the State failed to provide evidence that it lodged a detainer against

appellant.

      During the evidentiary hearing on appellant’s motion to dismiss, defense

counsel questioned when – and even if – the State had lodged a detainer against

appellant while he was incarcerated in Georgia for eight years. At that point, it was

the State’s burden to prove that it had filed a detainer against appellant in a timely

manner. See Howell, 

at 1173 (noting “[t]he burden to account for such

[prosecutorial] delay, however, is decidedly upon the prosecution”); Niles, 

3d at 664 (“‘Because the prosecutor and the court have an affirmative

constitutional obligation to try the defendant in a timely manner . . . the burden is

on the prosecution to explain the cause of the pretrial delay.’” (quoting United

States v. Ingram, 

, 1337 (11th Cir. 2006))).

      The State presented no evidence that it ever lodged a detainer against

appellant. Though Assistant State Attorney Ralph Grabel testified that the office’s

policy in 2005 was not to extradite out-of-state defendants, but rather to allow their

detainers to remain intact until their out-of-state sentences had expired, Mr. Grabel

also testified that he had no specific recollection of appellant’s case and made no

mention of when, or even if, the office had lodged a detainer against him.

      Thus, the record confirms the State failed to meet its burden of proving it

had lodged a detainer against appellant. As such, we note this factor should be

weighed against the State. Howell, 

at 1172 (noting that although

negligence in prosecuting should be “weighed less heavily against the state than an

intentional delay,” the State should nonetheless “bear the burden of fault”). See

also Doggett v. United States, 

, 657 (1992) (noting that negligence

should be “weighed more lightly than a deliberate intent to harm the accused’s

defense,” but also noting that “the weight we assign to official negligence

compounds over time as the presumption of evidentiary prejudice grows”).




                                          8
                  C. Whether Appellant Timely Asserted His Right

      The State alleges appellant’s failure to assert his constitutional speedy trial

right during his eight-year incarceration in Georgia should be weighed heavily

against him, and the trial court agreed. It is true appellant did not assert his right to

speedy trial while incarcerated in Georgia; however, as noted above, his failure to

assert that right was due in part to the State’s negligence. Appellant contended he

was unable to request a speedy trial through the procedures outlined in the

Interstate Agreement on Detainers Act because he had never been informed that a

detainer was lodged against him for his Florida charges. We agree that the State

failed to meet its burden of proving it had filed a detainer against appellant, which

would have then shifted the burden to appellant pursuant to the Act to request a

speedy trial.

      Typically, “[t]he defendant’s assertion of his speedy trial right . . . is entitled

to strong evidentiary weight in determining whether the defendant is being

deprived of the right. We emphasize that failure to assert the right will make it

difficult for a defendant to prove that he was denied a speedy trial.” 

.

      In the current case, appellant did not assert his speedy trial right until eight

years after the State filed the information against him and six months after his




                                           9
arrest in Florida. Typically, appellant’s failure to assert his speedy trial right would

weigh heavily against him.

      However, the unique circumstances in this case indicate that although

appellant was made aware of the Florida charges against him by his parole officer,

he was never served with a copy of the information, nor was he notified that a

detainer had been filed against him, and he had the right to request a speedy

disposition of his Florida charges even while incarcerated in Georgia. Because the

State failed to prove in this case that it took the necessary steps to put appellant on

notice of its continued interest in prosecuting, this is a neutral factor.

          D. Whether the Delay Resulted in Actual Prejudice to Appellant

      The trial court determined that appellant was not actually prejudiced by the

eight-year delay in prosecution in part because he was still able to present many of

his alibi witnesses who were his family members. We disagree.

      “Perhaps the greatest evil which the Sixth Amendment speedy trial right

proposes to counter is the potential for a witness’s memory to lapse in regard to

material matters as the delay for trial increases.” Howell, 

at 1168 (citing

). Though the constitutional speedy trial right is intended to

ensure trial occurs before the defense is impaired by problems resulting from delay

such as memory lapse, “impairment of one’s defense is the most difficult form of

speedy trial prejudice to prove because time’s erosion of exculpatory evidence and

                                           10
testimony ‘can rarely be shown.’” 

(quoting 

).

      Here, we find appellant proved the necessary prejudice to his defense which

resulted from the prosecutorial delay.

      Appellant’s defense was a defense of misidentification. He claimed that an

unrelated acquaintance known to have looked very much like him was the one who

committed the crime. To support this theory of defense, appellant wanted to

present (1) an alibi witness, the owner of Johnny’s Auto, who had been present in

Georgia when appellant purchased a car with his family on the date of the

burglary; (2) an eyewitness who, when shown a photographic array, stated

appellant was not the perpetrator; and (3) evidence from the Missouri police

department, where appellant’s look-alike was arrested for different crimes and had

held himself out to be appellant by presenting appellant’s identification until a

fingerprint analyst realized the look-alike was not appellant.

      Appellant alleges that as a result of the prosecutorial delay, both the alibi

witness and the eyewitness were now either unavailable or deceased, and the

Missouri police department evidence had been destroyed.

      The trial court found the unavailability of the witnesses and the destruction

of the Missouri police records did not amount to actual prejudice because appellant




                                         11
could still present his alibi defense – that he was purchasing a car at the time of the

crimes – through the testimony of familial witnesses. We disagree.

      The Supreme Court has held that the death or unavailability of witnesses and

the loss of police records is “abundant evidence of actual prejudice.” Dickey v.

Florida, 

, 38 (1970). This court has held the same. State v. Hope, 

, 1137 (Fla. 1st DCA 2012).

      Here, the testimony of the alibi witness might not have aided appellant in his

defense because, as noted by the trial court, the alibi witness might not have

testified that he was with appellant on the day the crimes occurred. However, it is

indisputable that the testimony of the eyewitness who stated appellant was not the

perpetrator and the evidence from the Missouri police department indicating

appellant’s look-alike had been arrested in Missouri and held himself out to be

appellant there would have assisted appellant in proving his misidentification

defense. Thus, the loss of the testimony of that eyewitness and the Missouri

documentation as a result of the prosecutorial delay prejudiced appellant.

      Further, as noted by appellant, in 2009, four years after his information had

been filed, but four years before his arrest in Florida, the State destroyed all of the

physical evidence from the case. That evidence included the firearm appellant

allegedly used to commit the burglary and kidnapping, the jewelry allegedly stolen

during the crime, and bed sheets manipulated by the perpetrator to tie up the

                                          12
victims. Though Assistant State Attorney Grabel testified during a hearing on the

destruction of evidence that the destruction was inadvertent and the trial court

agreed, its destruction prevented appellant from testing any of that evidence for

DNA.

       In conclusion, after evaluating the four Barker factors, we find the eight-year

prosecutorial delay in the current case violated appellant’s constitutional right to a

speedy trial. First, the length of the delay was presumptively prejudicial. Second,

the delay was due to the State’s negligence in failing to lodge a detainer against

appellant, which would have notified appellant of his right to a speedy trial. Third,

appellant’s failure to assert his right to a speedy trial while incarcerated in Georgia

is a neutral factor, as the State failed to prove appellant was made aware that he

had a right to request a speedy trial pursuant to the Interstate Agreement on

Detainers Act.    Fourth, appellant suffered actual prejudice as a result of the

prosecutorial delay. This factor weighs heavily against the State.

       As such, we find appellant’s constitutional right to a speedy trial was

violated based on the specific circumstances present in this case and REVERSE

the trial court’s denial of his motion to dismiss.

WETHERELL, J., CONCURS; KELSEY, J., DISSENTS WITH OPINION.




                                          13
KELSEY, J., dissents.

      I respectfully dissent because this case turns on weighing the evidence under

the four factors of Barker v. Wingo, 

(1972), and this weighing

process is a core function of a trier of fact that should be left to the trial court’s

sound discretion, reviewable only for abuse of that discretion. Barker itself,

although not expressly setting forth an appellate standard of review, speaks in

terms of the wisdom of allowing the trial court discretion to weigh the factors of

each case. 

(noting ad-hoc weighing of each case “allows the trial

court to exercise a judicial discretion based on the circumstances”). As a general

rule in Florida, appellate courts defer to trial courts on questions of credibility of

witnesses, resolving factual disputes, and weighing evidence. E.g., Clegg v.

Chipola Aviation, Inc., 

, 1187 (Fla. 1st DCA 1984) (“It is not our

function to reweigh the evidence nor to substitute our judgment for that of the trial

court.”) (quoting Puritz v. Rosen, 

, 280 (Fla. 4th DCA 1983)). That

rule should apply here.

      The Fifth District applied this deferential standard of review to the Barker

tests, rather than itself re-weighing the evidence, in Fletcher v. State, 

, 472 (Fla. 5th DCA 2014) (“We conclude that in its well-written, detailed

order, the trial court properly analyzed and applied the balancing test set forth by

                                         14
the United States Supreme Court in Barker.”). Our earlier opinion in another

Barker case, Niles v. State, 

, 662 (Fla. 1st DCA 2013), noted that

the trial court there failed to set forth findings of fact or explanation for either its

denial of defendant’s motion to dismiss or his motion for reconsideration. We

noted that “Ordinarily, we would defer to the trial court’s factual findings that are

supported by competent, substantial evidence,” but we applied a de novo standard

of review because the trial court failed to set forth any findings of fact or

conclusions of 

. Here, in contrast, the trial court

conducted a detailed evidentiary hearing, heard argument of counsel, and entered

an order setting forth its findings of fact and the weight given to those facts. The

facts were supported by competent, substantial evidence. We should review only

for abuse of discretion the trial court’s weighing of the evidence under Barker.

      Other jurisdictions apply a deferential standard of review to trial courts’

weighing of the Barker factors. See, e.g., McPherson v. Miers, 7 F. App’x 845, 847

(10th Cir. 2001) (affirming New Mexico state court’s denial of inmate’s Sixth

Amendment claim upon finding that “the state court applied the correct rule of law

[and] that it weighed the Barker factors in a reasonable fashion”); State v. Porter,

, 640 (Ga. 2011) (“The trial court's weighing of each factor and its

balancing of all four factors—its ultimate judgment—are reviewed on appeal only

for abuse of discretion.”); Jenkins v. State, 

, 278 (Miss. 2006)

                                          15
(affirming trial court’s weighing of Barker factors because “[t]he trial court was

well within its discretion in finding that the four Barker factors favored the State”);

State v. Selvage, 

, 437 (Ohio 1997) (“There is no indication that the

trial court abused its discretion in applying the [Barker] test and making its

determination, and that determination will be accorded due deference.”). The

proper appellate standard of review under Barker is an important issue that the

Florida Supreme Court should review and resolve. On the specific facts of this

case, I would not reweigh the evidence and I would affirm the trial court’s order

denying Defendant’s motion to dismiss the charges against him.

      In 2005, Defendant, on parole in Georgia, was charged by information with

armed burglary, home invasion robbery, grand theft, and false imprisonment in

Alachua County, Florida. The allegations against him are as follows. He intended

to steal a high-visibility customized car parked at the house that he broke into, but

needed the key to the anti-theft device attached to the steering wheel. Upon

entering the house while carrying a gun, he encountered three young boys, ages 3,

10, and 14, who were home alone. He tore up a sheet, tied them up, and placed

them in a bedroom while he waited for an adult to come home. When the mother of

one of the boys arrived home with her seven-month-old baby, Defendant tied up

the mother as well, later releasing her when the baby would not stop crying. He

later tied up another teenage boy who came by the house. Over three hours after

                                          16
first entering the house, he ultimately got the keys from the man of the house under

threat of the gun. He was charged with grand theft of the car along with jewelry

and a gun, in addition to false imprisonment. On the sheriff’s sworn complaint, an

information and arrest warrant were issued promptly. The warrant was not

executed at that time, however, because Defendant was incarcerated in a Georgia

prison within days after filing of the information and arrest warrant on the Florida

charges. Defendant was taken into Florida custody on these charges upon his

release from Georgia prison eight years later, and Defendant ultimately entered a

plea of no contest to the Florida charges, reserving his right to appeal the

disposition of his motions to dismiss.

      The fundamental reason for the State’s delay in bringing Defendant to trial

in Florida was his eight-year incarceration in Georgia that commenced within days

after issuance of the Florida warrant. Florida is within its rights to allow

individuals in this situation to serve out their terms in other jurisdictions before

trying them on their Florida charges. See § 775.15(5), Fla. Stat. (2004) (providing

that statute of limitations is tolled as to a defendant who has been “timely charged

by indictment or information or other charging document and who has not been

arrested due to his or her absence from this state or has not been extradited for

prosecution from another state”). While the statute of limitations and constitutional

speedy trial considerations are independent legal inquiries, the Florida statute

                                         17
making an incarceration delay reasonable is presumptively constitutional. Two of

our sister courts have held on analogous facts that delays in prosecution due to

incarceration or absence from Florida are not unreasonable delays. State v.

Soebhag, 

, 673-74 (Fla. 2d DCA 2015); State v. Paulk, 

, 1231 (Fla. 4th DCA 2007). Neither of these two cases addressed whether the

“not unreasonable delay” could nevertheless constitute a violation of constitutional

speedy trial rights. This issue also merits supreme court review, but on its face it

favors affirming the trial court.

      It is undisputed that Defendant had actual knowledge of the Florida charges.

While it is true that this record does not contain a detainer on Defendant,

circumstantial evidence in the record fairly strongly suggests that a detainer was

filed. If the trial court and the parties had placed the same weight on the detainer

that the majority has done here, the State’s efforts to produce a copy of a detainer

may have been fruitful. The evidence indicated that the State habitually filed

detainers under these circumstances and believed it had filed one here. The record

contains correspondence from the sheriff requesting Defendant’s information from

the prosecutor, suggesting that a detainer was being prepared. Florida was able to

pick up Defendant immediately upon his release from Georgia prison, and

therefore had to have been aware of his release date and operating under specific

authority to take him into custody in another jurisdiction. Also relevant to the

                                        18
analysis, once in custody in Florida, Defendant signed a waiver of speedy trial,

reserving his legal arguments arising out of the lack of prosecution during his

Georgia incarceration; and then never filed a notice of expiration of speedy trial or

a demand for speedy trial, and delayed for over a year in setting a hearing on his

motion asserting prosecutorial delay—acts that were his responsibility to pursue.

Given this evidence, the trial court’s weighing of the delay factor was not

unreasonable and not an abuse of discretion.

      The trial court likewise was within its discretion to weigh the Barker

prejudice factors as it did. Defendant argued for an alibi defense in part on the

basis of his having been in Georgia buying a car at “Johnny’s” when these crimes

were committed. He claimed he was with his then-wife and his sister, but did not

want to call them as alibi witnesses because they both had felony criminal records

that would undermine their credibility. Instead, he wanted to call Johnny, but

Johnny could not be located at the time; and thus he argued that, assuming Johnny

would be unavailable, he was prejudiced. However, Defendant was not without

evidence to support this alibi argument. He presented a sales receipt from Johnny’s

dated the day of the crimes. He presented no evidence that Johnny would be a

favorable witness or that he would even recall one individual present on the sales

lot with others on any given day, let alone that specific day and time. Defendant’s

reluctance to call his felonious relatives to testify was not chargeable against the

                                         19
State. The trial court’s weighing of this issue against Defendant was not

unreasonable and not an abuse of discretion.

      The trial court’s weighing of Defendant’s second alibi argument likewise

was within the court’s discretion. Defendant claimed he had a look-alike who was

using his identification on the date of the crimes. He argued he would be unable to

prove that alibi by relying on the look-alike’s arrest in Missouri because evidence

in possession of Georgia authorities related to the Missouri arrest had been

destroyed, but Defendant did not show that the alibi defense was credible or that it

could not be established by means other than Georgia’s records.

      The trial court also reasonably and correctly concluded that the State’s

negligent destruction of physical evidence from the case—the sheet used to tie up

the victims, the stolen jewelry and gun, and the photographic line-up from which

five eye-witnesses identified Defendant promptly after the crimes occurred—was

unfortunate, but not the result of bad faith and therefore not a due process violation

or a factor to be weighed against the State. The State retained photographs of the

jewelry, the gun, and the photo arrays. Defendant made no showing that the sheets

would contain any DNA evidence at all, nor that it was likely any such evidence

would be exculpatory rather than merely potentially useful. Witnesses had

identified the stolen jewelry and the stolen gun as theirs. Defendant has conceded

on appeal that under current and controlling United States Supreme Court

                                         20
precedent, this Court must affirm on this factor. See Arizona v. Youngblood, 

(1988); California v. Trombetta, 

(1984). Given this authority

and this concession by Defendant, we are not at liberty to reweigh the trial court’s

treatment of this evidence, which would not in any event constitute an abuse of

discretion.

      Comparing the majority and dissenting opinions demonstrates that

reasonable minds can differ on how to weigh the Barker factors on this record. In

my view we should apply the abuse of discretion standard of review to this classic

weighing-of-evidence function and affirm the trial court’s order denying

Defendant’s motion to dismiss, thus upholding Defendant’s judgment and

sentence.




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