
    Clayton McDUFFIE, Petitioner, v. Honorable Thomas S. WILSON, etc., Respondent.
    No. 96-3249.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1996.
    Paul Morris, Coral Gables; James W. Woodard, for petitioner.
    Robert A. Butterworth, Attorney General, and Fleur Lobree, Assistant Attorney General, for respondent.
    Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.
   PER CURIAM.

Defendant Clayton McDuffie, charged with two felonies, seeks a writ of prohibition which would preclude his being tried as his right to a speedy trial was violated. We issue the writ.

The State was required by Rule 3.191(a), Florida Rules of Criminal Procedure, to bring McDuffie to trial within 175 days of his felony arrest, but did not do so, and McDuffie filed a timely notice of expiration of speedy trial time pursuant to Rule 3.191(h), Florida Rules of Criminal Procedure. Upon the fifing of the notice the trial court was required to hold a hearing thereon within five days and, unless it found that an appropriate reason existed, was required to order McDuffie brought to trial within ten days. At the hearing on the notice, however, the trial court concluded that McDuffie had acquiesced by his silence in a continuance that previously had been charged to the State for discovery violations, and refused to order McDuffie brought to trial within ten days. Subsequently, the speedy trial time period expired without trial and McDuffie moved for final discharge.

Our review of the transcripts of the earlier hearings on the discovery issues reveals that McDuffie did not at any time seek a continuance or join in the requests for continuances made by the State. While the trial court had the authority to revisit the issue as to which party should have been charged with a continuance, Colby v. McNeill, 595 So.2d 115 (Fla. 3d DCA), rev. denied, 604 So.2d 487 (Fla.1992), it did not have the authority to charge McDuffie with a continuance he did not seek. The court’s conclusion that McDuffie had by his silence acquiesced in the State’s continuances falls short as a defendant does not waive her or his right to a speedy trial through silence. Stuart v. State, 360 So.2d 406 (Fla.1978); Rivas v. Oppenbom, 605 So.2d 516 (Fla. 3d DCA 1992).

As the speedy trial time lapsed without trial, the absence of any waiver of a speedy trial by McDuffie requires that the trial court be prohibited from proceeding further on the charges.

Prohibition granted.  