
    STATE OF FLORIDA v KRESLER
    Case Nos. 83-6729CF10 and 83-4800CF10
    Seventeenth Judicial Circuit, Broward County
    June 17, 1987
    APPEARANCES OF COUNSEL
    Christina Spudeas, Assistant State Attorney, for plaintiff.
    Christopher Grillo for defendant.
   OPINION OF THE COURT

MARK A. SPEISER, Circuit Judge.

THIS CAUSE having come before the Court upon the Motion for Post-Conviction Relief filed by the above-named Defendant pursuant to F.R.Crim.P. 3.850 and the Court having considered the same together with the State’s response thereto and being otherwise advised in its premises, it is hereby

ORDERED AND ADJUDGED that the Motion is DENIED. At issue is the discrepancy in the varying time requirements within which a trial must be commenced when a Request for Final Disposition pursuant to Section 941.45(3)(a) is initiated by a Defendant in custody in another State (180 days) as distinguished from a Request for Custody pursuant to Section 941.45(4)(a) of a Defendant incarcerated in another State initiated by the prosecution (120 days). The State of Florida filed a Detainer for the above Defendant on June 6, 1983.

The Defendant claims his Request for Final Disposition was filed on May 2, 1984 as evidenced by Exhibit A. Section 941.45(3)(a), however provides in relevant part that such a request

. . . shall be accompanied by a certificate of the appropriate official having custody of the prisoner (i.e. Alabama) stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the state parole agency relating to the prisoner (emphasis added).

Section 941.45(3)(b) provides in relevant part:

The written notice and request for final disposition referred to in paragraph (a) shall be given or sent by the prisoner to the warden . . . who shall promptly forward it together with the certifícate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested (emphasis added).

The aforementioned certificate is dated May 18, 1984 and attached as Exhibit B. Exhibits A and B were thereafter, mailed on May 21, 1984 as evidenced by the postmark on Exhibit C. Since both the notice and certificate must be mailed together, it is the opinion of this Court that the 180 day period provided by Section 941.45(3)(a) begins to run on May 21, 1984, 180 days after the Defendant caused to be delivered to the prosecuting state officer the notice of request for final disposition and the accompanying certificate and that the expiration date of this period would be November 17, 1984.

The Defendant arrived in Broward County on September 23, 1984, moved for and was granted a continuance on December 3, 1984 and plead guilty and was sentenced on January 17, 1985. It would therefore appear that since the continuance and disposition of the case was after the expiration of the 180 day period (i.e. November 17, 1984) that he would be entitled to a discharge under Section 941.45(3)(d).

The State of Florida however pursuant to Section 941.45(4)(a) on May 10, 1984 as evidenced by Exhibit D transmitted a Request for Custody. That provision provides in relevant part in Section 941.45(4)(c) that

. . . the trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state. . . .

Exhibit E and F respectively confirm that the Request for Custody was mailed by the State of Florida on May 10, 1984 and received by the State of Alabama on May 14, 1984.

The Defendant pursuant to Section 941.45(4)(c) arrived within the receiving state (i.e. State of Florida) on September 23, 1984 as evidenced by Exhibit G, the Broward Sheriffs Office Booking Sheet. The 120 day period would thus begin to run on that date and expire on January 20, 1985.

Section 941.45(4)(c) also provides that for good cause shown, the trial court may grant a reasonable continuance. Toro v. State, 479 So.2d 298 (3d DCA 1985). The trial as previously noted was originally set for December 3, 1984 and pursuant to a Defense continuance, see Exhibit H, was reset for trial on January 2, 1985. On January 17, 1985, the Defendant entered a plea of guilty and was sentenced on that date as indicated by Exhibit I and J, the Judgment and Sentence respectively. Within the time frame provided by 941.45(4) that statutory framework was adhered to.

It would thus appear that within the very same time vacuum, the State availed itself of 941.45(4) and the Defendant of 941.45(3). Although the Defendant took the first step on May 2, 1984 by preparing his Request for Disposition, the statutory regulations of 941.45(3) provides that that section is not triggered until both the Request for Disposition and the certificate are mailed, the relevant date being May 21, 1984. The State on the other hand, implemented its Request for Custody pursuant to 941.45(4) ón May 14, 1984, the date the State of Alabama received the State of Florida’s written request. Thus, is is this Court’s decision that Section 941.45(4) is controlling and that the 120 day provision contained therein, was complied with.

Defendant further argues that he was never advised that he had the opportunity to be sentenced under the guidelines to waive that choice. A review of the transcript of the plea colloquy, a copy of which is attached hereto indicated that this Court inquired of the Defendant (p. 11) whether the sentence to be imposed was pursuant to the guidelines and counsel for Defendant replied the sentence was a result of a negotiated plea and was one outside of the guidelines. Under the circumstances, the Court deems there was a proper waiver through counsel of his right to elect to be sentenced outside of the guidelines. The decisions cited by counsel for the State are irrelevant since those cases where decided in the context of Defendants convicted following trial who did not address guidelines issues when they had the opportunity to do so on a direct appeal.

DONE AND ORDERED this 17th day of June, 1986 in Fort Lauderdale, Broward County, Florida.

The Defendant shall have thirty (30) days from the date of this Order to file a Notice of Appeal with the Fourth District Court of Appeals.

I hereby certify that a copy of this Order was mailed to the Defendant on this date.  