
    Lazaro GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-694.
    District Court of Appeal of Florida, Third District.
    May 4, 2005.
    Rehearing and Rehearing En Banc Denied July 13, 2005.
    
      Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defendant, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, JJ, and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Defendant, Lazaro Gonzalez, appeals an order of the trial court denying his motion for a speedy trial discharge. The defendant was charged with trafficking in cocaine and entered into a plea agreement. The defendant then sought a writ of habe-as corpus in the United States District Court for the Southern District of Florida which vacated his plea on August 7, 2002. Defendant later filed successive motions for speedy trial discharge which were denied by the trial court. Defendant filed the present appeal. We reverse and remand.

Defendant, Gonzalez, entered into a plea agreement on a trafficking in cocaine charge. Gonzalez failed to fully comply with the plea agreement and was sentenced to thirty years with fifteen years minimum mandatory by the trial court. Gonzalez moved for post conviction relief. The trial court’s denial of the motion was affirmed by this Court. See Gonzalez v. State, 714 So.2d 1125 (Fla. 3d DCA 1998), review dismissed, 761 So.2d 316 (Fla.2000). Gonzalez then sought a writ of habeas corpus in the United States District Court for the Southern District of Florida. The Federal Court granted the writ, vacated the plea as involuntary, and remanded with directions that “The State shall take further action as may be in accordance with the law within sixty days.” The Federal Court order was affirmed on September 15, 2003. The following day, the defendant again moved for speedy trial discharge. The trial court denied the motion on September 30, 2003. On January 22, 2004, for the third time, Gonzalez moved for discharge. When his motion was denied, he entered a new plea, reserved his right to appeal the trial court’s denial, and was sentenced to credit for time served. The appeal is now before this Court.

This case is controlled by Beckham v. State, 397 So.2d 449 (Fla. 3d DCA 1981). In Beckham, the defendant moved for discharge under the speedy trial rule in Circuit Court after entry of a Federal Court judgment on a petition for habeas corpus ordering the reinstatement of his guilty plea, or a new trial within a reasonable period of time. This Court held in Beck-ham that where a federal habeas corpus proceeding grants a retrial, the speedy trial rule does not apply. Instead, the time stated in the Court’s order applies. If no time is stated, a reasonable time would apply. Pursuant to Beckham, Gonzalez was entitled to the sixty days provided for in the Federal Court order beyond the date of affirmance by the Court of Appeals within which to be tried. Since more than that had expired when the defendant filed his motion for discharge on January 22, 2004, and he had not been retried, he was entitled to the discharge.

Reversed and remanded with instructions to discharge the defendant.

GERSTEN, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

In accordance with my concurring opinion in Beckham v. State, 397 So.2d 449, 451 (Fla. 3d DCA 1981), which the court is kind enough to characterize as “very persuasive,” op. at 210 n. 2, but which seems in fact to have persuaded no one but the very learned trial judge and me, I believe that the judgment below should be affirmed. As that opinion states (a) the federal district court’s order has no binding effect upon the proceeding in the circuit court; and (b) in part because of this, the state’s speedy trial rule did not come into play in this case, at least not until the circuit court set aside the previous judgment on February 5, 2004. Beckham, 397 So.2d at 451 (Schwartz, J., specially concurring). Quite obviously, there was no violation of that rule here, because the plea and judgment which ended this case occurred on February 20, 2004, only fifteen days later. Moreover, in view of the extensive appellate proceedings in the Eleventh Circuit, even assuming that this is the applicable standard (although it finds little, if any, support in the decided cases), I hardly believe that the “delay” in bringing Gonzalez to trial was “unreasonable,” as the majority expresses it. It is even more obvious that it did not violate the speedy trial guarantees of the Florida and United States Constitutions, which are the only rules which actually apply. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Brown v. State, 515 So.2d 211 (Fla.1987); State v. Bivona, 496 So.2d 130 (Fla.1986); Ferris v. State, 475 So.2d 201 (Fla.1985); State v. Jenkins, 899 So.2d 1238 (Fla. 4th DCA 2005); State v. Rodriguez, 790 So.2d 1272 (Fla. 3d DCA 2001). 
      
      . On September 5, 2003, the trial court tolled ‘'speedies” during the pendency of the appeal.
     
      
      . The learned trial judge appears to have been relying on the very persuasive concurrence of Judge Schwartz in Beckham. Judge Schwartz concurred for the purpose of explaining his reasoning.
     
      
      . Of course, the federal court was free itself to order the appellant’s release on an equivalent of habeas corpus if it felt that the state had violated the letter or spirit of its original order requiring a new trial. It did not do so.
     
      
      . It is at least ironic that, after securing a new trial from the federal court on the ground that the first one had violated his constitutional rights, the defendant decided that he did not wish to chance a new trial after all, and pled guilty reserving only the right to challenge (as it turns out, successfully) the “delay” in affording him a new, errorless trial he deliberately refused.
     