
    AGOSTINO v STATE OF FLORIDA
    Appellate Case No. 84-10466
    Thirteenth Judicial Circuit, Hillsborough County
    September 19, 1985
    APPEARANCES OF COUNSEL
    S. Grant Halliday for appellant.
    Arthur C. Shiro, State Attorney’s Office, for appellee.
   OPINION OF THE COURT

MANUEL MENENDEZ, JR., Circuit Judge.

Appellant, Bernard David Agostino, was convicted upon nonjury trial of selling fireworks, a misdemeanor, in violation of Florida Statute Section 791.02. On appeal Appellant argues:

(1) that the trial court erred in failing to grant his motion for discharge pursuant to the “speedy trial” rule, Rule 3.191 Florida Rules of Criminal Procedure;
(2) that the evidence adduced at trial was insufficient to support the judgment of guilty.

Inasmuch as the first issue is hereby decided in Appellant’s favor, the second issue will not be addressed.

Appellant was “taken into custody”, within the meaning of rule 3.191 Florida Rule of Criminal Procedure, on May 25, 1984. His trial did not commence until more than 90 days later, on September 5, 1984. Prior to the commencement of trial the trial court denied Appellant’s timely filed Motion for Discharge.

Although trial in this case had on two occasions been scheduled prior to September 5, 1984 and within the 90 day speedy trial period, continuances had been granted on those occasions at the request of the prosecution. Appellant never requested nor was he given any continuances. Appellant was available for trial on all occasions. An extension of the speedy trial time period was never sought nor was such an extension ever granted. Moreover, the record indicates that the failure to hold trial within the prescribed time frame was in no way attributable to the Appellant or his counsel. There appears to be no appropriate reason for denying the motion for discharge. Accordingly, the judgment is reversed and remanded for further proceedings consistent with this opinion.

DECIDED this 19th day of September, 1985 at Tampa, Hillsborough County, Florida.  