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Filing # 67748911 E-Filed 02/09/2018 11:07:45 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR
OSCEOLA COUNTY, FLORIDA
CARLOS SERRANO,
Petitioner, CASE NO. 2018-CA-110-OC
vs. LOWER CASE NO: 2017-MM-002807
STATE OF FLORIDA, etc.
Respondents.
/
RESPONSE TO ORDER TO SHOW CAUSE AND COMPLAINT FOR WRIT
OF PROHIBITION
ARAMIS D. AYALA
STATE ATTORNEY
NINTH JUDICIAL CIRCUIT
Carol Levin Reiss
Assistant State Attorney
Florida Bar # 501034
Post Office Box 1673
Orlando, Florida 32802
Telephone: 407-836-2406
PCF@sa09.org
COUNSEL FOR RESPONDENT STATE OF
FLORIDIATABLE OF CONTENTS
TABLE OF CONTENTS ......ccsssssesssessesseessessessscssessscsssssesssssssenesseessseseaseeseesseeseesseasess i
TABLE OF AUTHORITIES .......scsssssssssesssescessscssesseesssessseesscsssesssessseessssusesensesseseesees ii
PRELIMINARY STATEMENT.....cscssssssssssscssssssssssesssssssssesscenssesssesssenssesseessseenereesees 1
STATEMENT OF THE CASE AND FACTS. ......cscsssssssssssssesssssssscsssesssessnssssesssesens 2
ARGUMENT .....ccssssesssssssssscsssssssssssssssssssseseessscsscsscenessrccnseaecsnseareasenesensenenssssveesceneess 6
I, JUDGE DRAPER SHOULD NOT BE RECUSED FROM PRESIDING
OVER THE CASE.....ecsssssssssssssssessssesesesssccsseccessessessscsaseessecesnesseessecanesssesnsseeesecanees 6
Il, THE TRIAL COURT HAS JURISDICTION OVER THE CASE.............. 8
CONCLUSION ......scsssssssesssssssvsssssersssssssscssssnssneesssssnesscesoescaneseessansaneassessenseenseneeneees 10
CERTIFICATION. ......cccssssssessesssssssessscsssneesenscsncencsneneescanceneasesceneaseasescescnsrseeateasensees 11
CERTIFICATE OF COMPLIANCE....ssscssssssssssessessesssssssessnssssessesaeeneaneneeseenennsnneses 11TABLE OF AUTHORITIES
Cases
Busch v. State,
937 So. 2d 1148 (Fla. 5th DCA 2006)... 10
Duckworth v. State,
469 So. 2d 913 (Fla. Ist DCA 1985)......cscscssssssesseseeecesseesssesssseessessesseasessesness 8
Graulich v. State,
287 So. 2d 114 (Fla. 3d DCA 1973) ...cssessessssesssssesssssessssessssssessessesssesssssesseassenees 8
Grimes v. State,
872 So. 2d 286 (Fla. 4th DCA 2004)... scssessssssssssessessessssssessesssssssseseresereneeneennees 8
Hajal v. State,
864 So. 2d 1167 (Fla. Sth DCA 2004) ......eesssecsesssessessssssssnssssssessnssnsssessessseenneneees 9
Siuda v. State,
114 So. 3d 395 (Fla. 4th DCA 2013) ......ccssssessssesssssssssseesesssssseeresesssenssesneneenersees 7
State ex rel. Leon v. Baker,
238 So. 2d 281 (Fla. 1970).......cssssssssscsssessessecscssssessesssssssssesasssseesesssseeaseseeneenensees 8
State v. Gutierrez,
10 So. 3d 158 (Fla. 3d DCA 2009) .....sssssssessssssessesssssnesnessessesssssessesssceneessecssennenss 7
State v. Miller,
672 So. 2d 855 (Fla. 5th DCA 1996)..... 4, 5,6
State v. Nelson,
26 So. 3d. 570 (Fla. 2010)......ssssscssessssssessessssensssscsssssessseenessessussncssesaeesnsaneenseneessseess 9
State vs. S.A.,
133 So. 3d 506 (Fla. 2014) ssssssssssssssssonssscsesssssssssnssscessssssssnssssesecceessnnsasseeeceeeieees 3
iiRules
Fla. R. App. P. 9.210(a)(2)...sscssssssescssscsssossvssssescsscsssessssessesssscssesesscesesssssesecesssssanees 11
Rule 3.191, Fla, R. Crim, Pu..sssessssessssecsssessessssvesssesssecsnecssscnecsscesnecsveesseeaneessvecaneeses 4
iiiPRELIMINARY STATEMENT
This is a response to an Order to Show Cause and a Complaint for Writ of
Prohibition. Carlos Serrano will be referred to as either the “Petitioner” or the
“Defendant.” Defense counsel, Carlus Haynes who represented the Defendant,
will be referred to as “Defense Counsel.” The County Court from which this
Petition arises will be referred to as the “Trial Court.” Respondent, the State of
Florida, will sometimes be referred to as the “State.”STATEMENT OF THE CASE AND FACTS
The Defendant was arrested on August 20, 2017, (Petitioner’s Appendix B,
p. 3). The State filed an Information charging the Defendant with Resisting Officer
Without Violence (Respondent’s Appendix A). The notice of expiration of time for
speedy trial was filed on November 28, 2018 at 5:20 p.m. (Petitioner’s Appendix
B, p. 3 and Respondent’s Appendix B). On November 29, 2017, the Court held a
Richardson hearing, found the untimely disclosure of discovery as unintentional
and granted its own motion to continue and scheduled the Pre-trial for December
20, 2017. (Respondent’s Appendix C), On November 30, 2017, the Court held a
five day calendar call on the notice of expiration of speedy. (Petitioner’s Appendix
B, p. 3).
It looks like it was filed on the 28" of November at 5:20 p.m. So it
didn’t get to my office until yesterday mid morning , and I was in
court. So as soon as we realized it yesterday, we put it on the docket
for today. I remembered that he was in jail, so I though jail
arraignments was the easiest way to handle it.
Petitioner’s Appendix B, p. 3.
Trial was scheduled for December 12, 2017. (Petitioner’s Appendix
B, p. 11, Respondent’s Appendix D). In the early morning hours of December 12,
2017, Defense Counsel filed a Motion (Demand) for Discharge or in the
Alternative Objection to Advancing Trial Date Simply to Satisfy Speedy Trial
Where the New Trial Date Was Provided as a Sanction for Clear Violations of theRules of Discovery. (Respondent’s Appendix E). At 8:39 that same morning
Petitioner filed a Corrected Motion of the foregoing which corrected the County
and the Defendant’s attorney’s address. (Respondent’s Appendix F). At the
hearing on December 12, 2017, the Trial Court noted that the Corrected Motion
was filed at 8:39 in the morning even though the trial was due to start at 8:30.
(Petitioner’s Appendix C, p. 5-6.)
Defense Counsel argued that the Corrected Motion for Discharge was timely
filed since the tenth day from the calendar call was December 11, 2017.
(Petitioner’s Appendix C, p. 13-14). Defense Counsel asked the Court to rely on
State v. SA, a case Defense Counsel did not provide to the Court. (Petitioner’s
Appendix C, p. 20), and argued that the time to bring his client to trial had expired.
(Petitioner’s Appendix C, p. 23). Further, Defense Counsel argued that a discovery
violation should be charged to the State even if it goes outside of speedy trial.
(Petitioner’s Appendix C, p. 17).
The State argued that it has an overall 15-day window to bring the
Defendant to trial within the recapture period, which the State has done.
(Petitioner’s Appendix C, p. 27).
Defense Counsel relied on State vs. S.A., 133 So. 3d 506 (Fla. 2014), which
he did not provide to the Judge but asserted was in his Motion. (Petitioner’s
Appendix C, p. 21-23).Thus, Defense Counsel argued that time to bring his client to trial had expired,
since it was either the 11" or 12" day after the calendar call had occurred.
(Petitioner’s Appendix C, p. 23). The State’s argued it had brought the Defendant
to trial within the fifteen-day recapture period. (Petitioner’s Appendix C, p. 25-26).
As far as the discovery issue, the State argued that the defense had to choose
between participating in the discovery process, and having a right to a speedy trial.
The State cited State v. Miller, 672 So. 2d 855 (Fla. 5th DCA 1996), in support
thereof. (Petitioner Appendix C, p. 27-28).
The Judge then denied the Corrected Motion, Demand for Discharge and
overruled the objection to advancing the trial date. (Petitioner’s Appendix C, p.
29).
Defense Counsel believed that based on the Court’s “misstatement” of Rule
3.191, Fla. R. Crim, P. and bias against him, that the Defendant would not receive
a fair trial. (Petitioner’s Appendix C, p. 33-34). Thus, Judge Jancewicz gave
Defense Counsel time to prepare a motion to recuse. (Petitioner’s Appendix C, p.
35). Prior to the recess, however, the State put what it has offered in this case on
the record. (Petitioner’s Appendix C, p. 36). The Judge granted the motion for
disqualification and stated the case would be reassigned. (Appendix C, p. 45).
On the next day, December 13, 2017, at 8:44 am, Judge Draper’s Judicial
Assistant sent Defense Counsel an email stating the case was transferred to Judge
4Draper and the trial would be that day no later than 10:30 AM. (Petitioner’s
Appendix D). Because Judge Draper’s Office could not locate Defense Counsel,
Judge Draper found speedy trial waived and set the matter for pre-trial for January
8, 2018. (Petitioner’s Appendix E).
On December 28, 2017, the Defendant filed a second motion for discharge.
(Petitioner’s Appendix H), arguing that the trial date was after the speedy trial
period expired and after the recapture period expired and the absence of counsel
was due to insufficient notice of trial. Jd.
On January 2, 2018, Judge Draper entered an Order denying defendant’s
second motion for discharge and objection to setting trial date without proper
notice. (Petitioner’s Appendix J). On January 8, 2018, defense filed a motion to
recuse/disqualify, seeking to recuse Judge Draper for prejudging issues and
violating defendant’s due process rights. (Petitioner’s Appendix, G). On January
11, 2018, Judge Draper denied the motion to disqualify for prejudging issues and
violating defendant’s due process right. (Petitioner’s Appendix F).
On January 16, 2018, in open court and instead of Trial, the Defendant pled
guilty and the case was set for sentencing on February 16, 2018, (Respondent’s
Appendix I and J). The Defendant’s Plea Agreement which the Defendant and
Defense Counsel both executed states that the Defendant by entering a plea of
guilty, gives up the right to present any and all defenses that he may have to the
5crime charged. (Respondent’s Appendix I). Further the executed Plea states that
“by entering a plea I am giving up my right to appeal all matters except the legality
of my sentence or this Court’s authority to hear my case.” Jd. Later that same day,
at 6:20 p.m, Petitioner filed a Complaint for Writ of Prohibition.
ARGUMENT
I. JUDGE DRAPER SHOULD NOT BE RECUSED FROM PRESIDING
OVER THE CASE
Defendant is estopped from challenging the requested recusal of Judge
Draper when the Defendant entered into a negotiated plea to the bench with Judge
Draper with the assistance of his attorney. To summarize, the Defendant cannot
enter into a plea to the bench and then later claim his request for recusal of the
Judge should have been granted. The plea form itself states that the Defendant
gives up the right to object and thereafter appeal any possible error, mistake,
unfairness, injustice, or oversight that occurred during the course of the trial. See
Respondent’s Appendix I, Plea. Furthermore, Defendant, did not move to
withdraw the Plea or reserve the right to appeal the issue but merely now claims
Judge Draper should be prevented from presiding over the case.IA. Likewise, the Defendant cannot enter into a plea, nor reserve the right to
appeal the issues at bar or move to withdraw the plea, and then argue he was not
afforded the opportunity to be heard in a prior motion. See State v. Gutierrez, 10
So. 3d 158 (Fla. 3d DCA 2009) (“A plea agreement is a contract and the rules of
contract law are applicable to plea agreements.”) (A defendant cannot accept the
benefit of a plea bargain without accepting its burden.).
IB. Further, the Defendant’s entering into a plea estops the Defendant’s
complaint that Judge Draper did not give sufficient notice of the trial date violated
due process. Again, the defendant cannot accept the benefit of a plea without
accepting its burden. State v, Gutierrez, supra. Moreover, even as noted by the
Defendant on page 15 if the Complaint for Writ of Prohibition: “The trial judge,
while admitting to the providing less than two hours’ notice for trial, does not
assert that it was legally sufficient, but claims that it had no other alternative.”
These issues are waived by the Defendant’s entering into a plea. See Siuda v. State,
114 So. 3d 395 (Fla. 4 DCA 2013) (“Due process is not implicated . . . where
there has been an agreement by defendant to pay restitution, notice and an
opportunity to be heard, and an affirmative waiver.”).
IC. The issues in the Second Motion to Disqualify are barred since the
Defendant subsequently entered a plea and waived his rights for these issues to be
heard. See Plea, Respondent’s Appendix I. Further, these issues are not dispositive
7of the case and “[i]t is clear that a change of judicial personnel would not have
disposed of the case.” Duckworth v. State, 469 So. 2d 913 (Fla. Ist DCA 1985).
Il. THE TRIAL COURT HAS JURISDICTION OVER THE CASE
ILA. Petitioner argued the 5/10 recapture periods are separate time
periods and the Trial Should have commenced ten days after the Hearing on the
Notice of Expiration. This argument, however, was waived, when the Defendant
initially acquiesced to the trial date being set for December 12, 2017, and entered
into a Plea. The plea agreement states that the defendant gives up his right to
object and thereafter appeal any possible error, mistake, unfairness, injustice, or
oversight that occurred during the course of the trial. Respondent’s Appendix I.
Therefore, Defendant has waived and acquiesced to argue a speedy trial defense.
See State ex rel. Leon v. Baker, 238 So. 2d 281 (Fla. 1970) (“We agree with the
contention that doctrines of waiver and acquiescence are fully applicable to speedy
trial cases.”); Grimes v. State, 872 So. 2d 286 (Fla. 4th DCA 2004) (Appellant
alleges a speedy trial violation, which could have been raised as an issue on appeal
but was waived when he pled guilty.); Graulich v. State, 287 So. 2d 114 (Fla. 3d
DCA 1973) (Judgment affirmed when appellant entered a guilty plea and then
appealed the denial of her motion for discharge pursuant to the speedy trial rule.).ILB. Defendant recognizes that a continuance or unavailability
occurring after the expiration of the speedy trial period but before the conclusion of
the recapture period is grounds for a waiver. State v. Nelson, 26 So. 3d 570 (Fla.
2010). Defendant acquiesced to the original setting of the trial for December 12,
2017, and thus, Nelson, 26 So. 3d 570 supports the State’s position and not the
Defendant’s. The State’s unpreparedness for trial is not the issue here. Similarly,
Petitioner has cited, Hajal v. State, 864 So. 2d 1167, 1169 (Fla. 5th DCA 2004), in
support of its argument that a waiver of speedy trial cannot be implied by counsel’s
failure to appear by 10:30 a.m. for trial if the court believed it had to conduct the
trial on December 13, 2017. Hajal v. State, supra, however, establishes that “[w]e
do not agree that the court can infer a request for continuance and waiver of
Petitioner’s speedy trial right on this record, even given the “custom.” In this
Marion County case, the custom and practice at status conference was to give
defense counsel three options: 1) set the case for trial, 2) schedule a date for
change of plea, or 3) request a continuance. Jd. “Because counsel’s status report
did not announce that Petitioner was ready for trial or to change his plea, the court
inferred the last remaining option which was a continuance with a waiver of
speedy trial. The appellate court did not agree and stated the court could not infer a
request for a continuance as a waiver of speedy even given the “custom.” /d. Again
this is not the factual scenario here and this case should be discounted.IIC. In the instant case, the Defendant entered a plea to the charge, without
preserving its rights to appeal the issues raised herein and did not move to
withdraw the plea. Thus, the Petitioner has waived it right to contest the issues
herein. Petitioner aptly cites Busch v. State, 937 So. 1148 (Fla. 5th DCA 2006)
which involved an appeal where the appellant entered a plea of no contest to a
felony DUI but reserved her right to appeal the speedy trial issue. This is not
the case here. Thus, Respondent requests this Honorable Court to order the
Defendant to appear for sentencing as called for by his Plea before the Honorable
Judge Draper. (Respondent’s Appendix I and J).
CONCLUSION
Based on the arguments and authorities presented herein, the State requests
the Complaint for Writ of Prohibition to be dismissed.
Respectfully submitted,
ARAMIS D. AYALA, STATE ATTORNEY
Carol Levin Reiss
Assistant State Attorney
Florida Bar # 501034
Post Office Box 1673
Orlando, Florida 32802
Telephone: 407-836-2406
PCF@sao9.org
10CERTIFICATION
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by electronic mail to counsel for Appellant, Carlus Haynes, Esquire
champ@fighting4ulaw.com; 8615 Commodity Circle, Unit 6, Orlando, FL 32819
by e-mail onthis _9*" day of February, 2018.
CERTIFICATE OF COMPLIANCE
| HEREBY CERTIFY that the size and style of type used is this Response is
in 14- point Times New Roman, in compliance with Fla. R. App. P. 9.210(a)(2).
Respectfully submitted,
ARAMIS D. AYALA
STATE ATTORNEY
y .
Carol Levin Reiss
Assistant State Attorney
Florida Bar # 501034
Post Office Box 1673
Orlando, Florida 32802
Telephone: 407-836-2406
PCF@sa09.org
11
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Filing # 67748911 E-Filed 02/09/2018 11:07:45 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA CARLOS SERRANO, Petitioner, CASE NO. 2018-CA-110-OC vs. LOWER CASE NO: 2017-MM-002807 STATE OF FLORIDA, etc. Respondents. / RESPONSE TO ORDER TO SHOW CAUSE AND COMPLAINT FOR WRIT OF PROHIBITION ARAMIS D. AYALA STATE ATTORNEY NINTH JUDICIAL CIRCUIT Carol Levin Reiss Assistant State Attorney Florida Bar # 501034 Post Office Box 1673 Orlando, Florida 32802 Telephone: 407-836-2406 PCF@sa09.org COUNSEL FOR RESPONDENT STATE OF FLORIDIATABLE OF CONTENTS TABLE OF CONTENTS ......ccsssssesssessesseessessessscssessscsssssesssssssenesseessseseaseeseesseeseesseasess i TABLE OF AUTHORITIES .......scsssssssssesssescessscssesseesssessseesscsssesssessseessssusesensesseseesees ii PRELIMINARY STATEMENT.....cscssssssssssscssssssssssesssssssssesscenssesssesssenssesseessseenereesees 1 STATEMENT OF THE CASE AND FACTS. ......cscsssssssssssssesssssssscsssesssessnssssesssesens 2 ARGUMENT .....ccssssesssssssssscsssssssssssssssssssseseessscsscsscenessrccnseaecsnseareasenesensenenssssveesceneess 6 I, JUDGE DRAPER SHOULD NOT BE RECUSED FROM PRESIDING OVER THE CASE.....ecsssssssssssssssessssesesesssccsseccessessessscsaseessecesnesseessecanesssesnsseeesecanees 6 Il, THE TRIAL COURT HAS JURISDICTION OVER THE CASE.............. 8 CONCLUSION ......scsssssssesssssssvsssssersssssssscssssnssneesssssnesscesoescaneseessansaneassessenseenseneeneees 10 CERTIFICATION. ......cccssssssessesssssssessscsssneesenscsncencsneneescanceneasesceneaseasescescnsrseeateasensees 11 CERTIFICATE OF COMPLIANCE....ssscssssssssssessessesssssssessnssssessesaeeneaneneeseenennsnneses 11TABLE OF AUTHORITIES Cases Busch v. State, 937 So. 2d 1148 (Fla. 5th DCA 2006)... 10 Duckworth v. State, 469 So. 2d 913 (Fla. Ist DCA 1985)......cscscssssssesseseeecesseesssesssseessessesseasessesness 8 Graulich v. State, 287 So. 2d 114 (Fla. 3d DCA 1973) ...cssessessssesssssesssssessssessssssessessesssesssssesseassenees 8 Grimes v. State, 872 So. 2d 286 (Fla. 4th DCA 2004)... scssessssssssssessessessssssessesssssssseseresereneeneennees 8 Hajal v. State, 864 So. 2d 1167 (Fla. Sth DCA 2004) ......eesssecsesssessessssssssnssssssessnssnsssessessseenneneees 9 Siuda v. State, 114 So. 3d 395 (Fla. 4th DCA 2013) ......ccssssessssesssssssssseesesssssseeresesssenssesneneenersees 7 State ex rel. Leon v. Baker, 238 So. 2d 281 (Fla. 1970).......cssssssssscsssessessecscssssessesssssssssesasssseesesssseeaseseeneenensees 8 State v. Gutierrez, 10 So. 3d 158 (Fla. 3d DCA 2009) .....sssssssessssssessesssssnesnessessesssssessesssceneessecssennenss 7 State v. Miller, 672 So. 2d 855 (Fla. 5th DCA 1996)..... 4, 5,6 State v. Nelson, 26 So. 3d. 570 (Fla. 2010)......ssssscssessssssessessssensssscsssssessseenessessussncssesaeesnsaneenseneessseess 9 State vs. S.A., 133 So. 3d 506 (Fla. 2014) ssssssssssssssssonssscsesssssssssnssscessssssssnssssesecceessnnsasseeeceeeieees 3 iiRules Fla. R. App. P. 9.210(a)(2)...sscssssssescssscsssossvssssescsscsssessssessesssscssesesscesesssssesecesssssanees 11 Rule 3.191, Fla, R. Crim, Pu..sssessssessssecsssessessssvesssesssecsnecssscnecsscesnecsveesseeaneessvecaneeses 4 iiiPRELIMINARY STATEMENT This is a response to an Order to Show Cause and a Complaint for Writ of Prohibition. Carlos Serrano will be referred to as either the “Petitioner” or the “Defendant.” Defense counsel, Carlus Haynes who represented the Defendant, will be referred to as “Defense Counsel.” The County Court from which this Petition arises will be referred to as the “Trial Court.” Respondent, the State of Florida, will sometimes be referred to as the “State.”STATEMENT OF THE CASE AND FACTS The Defendant was arrested on August 20, 2017, (Petitioner’s Appendix B, p. 3). The State filed an Information charging the Defendant with Resisting Officer Without Violence (Respondent’s Appendix A). The notice of expiration of time for speedy trial was filed on November 28, 2018 at 5:20 p.m. (Petitioner’s Appendix B, p. 3 and Respondent’s Appendix B). On November 29, 2017, the Court held a Richardson hearing, found the untimely disclosure of discovery as unintentional and granted its own motion to continue and scheduled the Pre-trial for December 20, 2017. (Respondent’s Appendix C), On November 30, 2017, the Court held a five day calendar call on the notice of expiration of speedy. (Petitioner’s Appendix B, p. 3). It looks like it was filed on the 28" of November at 5:20 p.m. So it didn’t get to my office until yesterday mid morning , and I was in court. So as soon as we realized it yesterday, we put it on the docket for today. I remembered that he was in jail, so I though jail arraignments was the easiest way to handle it. Petitioner’s Appendix B, p. 3. Trial was scheduled for December 12, 2017. (Petitioner’s Appendix B, p. 11, Respondent’s Appendix D). In the early morning hours of December 12, 2017, Defense Counsel filed a Motion (Demand) for Discharge or in the Alternative Objection to Advancing Trial Date Simply to Satisfy Speedy Trial Where the New Trial Date Was Provided as a Sanction for Clear Violations of theRules of Discovery. (Respondent’s Appendix E). At 8:39 that same morning Petitioner filed a Corrected Motion of the foregoing which corrected the County and the Defendant’s attorney’s address. (Respondent’s Appendix F). At the hearing on December 12, 2017, the Trial Court noted that the Corrected Motion was filed at 8:39 in the morning even though the trial was due to start at 8:30. (Petitioner’s Appendix C, p. 5-6.) Defense Counsel argued that the Corrected Motion for Discharge was timely filed since the tenth day from the calendar call was December 11, 2017. (Petitioner’s Appendix C, p. 13-14). Defense Counsel asked the Court to rely on State v. SA, a case Defense Counsel did not provide to the Court. (Petitioner’s Appendix C, p. 20), and argued that the time to bring his client to trial had expired. (Petitioner’s Appendix C, p. 23). Further, Defense Counsel argued that a discovery violation should be charged to the State even if it goes outside of speedy trial. (Petitioner’s Appendix C, p. 17). The State argued that it has an overall 15-day window to bring the Defendant to trial within the recapture period, which the State has done. (Petitioner’s Appendix C, p. 27). Defense Counsel relied on State vs. S.A., 133 So. 3d 506 (Fla. 2014), which he did not provide to the Judge but asserted was in his Motion. (Petitioner’s Appendix C, p. 21-23).Thus, Defense Counsel argued that time to bring his client to trial had expired, since it was either the 11" or 12" day after the calendar call had occurred. (Petitioner’s Appendix C, p. 23). The State’s argued it had brought the Defendant to trial within the fifteen-day recapture period. (Petitioner’s Appendix C, p. 25-26). As far as the discovery issue, the State argued that the defense had to choose between participating in the discovery process, and having a right to a speedy trial. The State cited State v. Miller, 672 So. 2d 855 (Fla. 5th DCA 1996), in support thereof. (Petitioner Appendix C, p. 27-28). The Judge then denied the Corrected Motion, Demand for Discharge and overruled the objection to advancing the trial date. (Petitioner’s Appendix C, p. 29). Defense Counsel believed that based on the Court’s “misstatement” of Rule 3.191, Fla. R. Crim, P. and bias against him, that the Defendant would not receive a fair trial. (Petitioner’s Appendix C, p. 33-34). Thus, Judge Jancewicz gave Defense Counsel time to prepare a motion to recuse. (Petitioner’s Appendix C, p. 35). Prior to the recess, however, the State put what it has offered in this case on the record. (Petitioner’s Appendix C, p. 36). The Judge granted the motion for disqualification and stated the case would be reassigned. (Appendix C, p. 45). On the next day, December 13, 2017, at 8:44 am, Judge Draper’s Judicial Assistant sent Defense Counsel an email stating the case was transferred to Judge 4Draper and the trial would be that day no later than 10:30 AM. (Petitioner’s Appendix D). Because Judge Draper’s Office could not locate Defense Counsel, Judge Draper found speedy trial waived and set the matter for pre-trial for January 8, 2018. (Petitioner’s Appendix E). On December 28, 2017, the Defendant filed a second motion for discharge. (Petitioner’s Appendix H), arguing that the trial date was after the speedy trial period expired and after the recapture period expired and the absence of counsel was due to insufficient notice of trial. Jd. On January 2, 2018, Judge Draper entered an Order denying defendant’s second motion for discharge and objection to setting trial date without proper notice. (Petitioner’s Appendix J). On January 8, 2018, defense filed a motion to recuse/disqualify, seeking to recuse Judge Draper for prejudging issues and violating defendant’s due process rights. (Petitioner’s Appendix, G). On January 11, 2018, Judge Draper denied the motion to disqualify for prejudging issues and violating defendant’s due process right. (Petitioner’s Appendix F). On January 16, 2018, in open court and instead of Trial, the Defendant pled guilty and the case was set for sentencing on February 16, 2018, (Respondent’s Appendix I and J). The Defendant’s Plea Agreement which the Defendant and Defense Counsel both executed states that the Defendant by entering a plea of guilty, gives up the right to present any and all defenses that he may have to the 5crime charged. (Respondent’s Appendix I). Further the executed Plea states that “by entering a plea I am giving up my right to appeal all matters except the legality of my sentence or this Court’s authority to hear my case.” Jd. Later that same day, at 6:20 p.m, Petitioner filed a Complaint for Writ of Prohibition. ARGUMENT I. JUDGE DRAPER SHOULD NOT BE RECUSED FROM PRESIDING OVER THE CASE Defendant is estopped from challenging the requested recusal of Judge Draper when the Defendant entered into a negotiated plea to the bench with Judge Draper with the assistance of his attorney. To summarize, the Defendant cannot enter into a plea to the bench and then later claim his request for recusal of the Judge should have been granted. The plea form itself states that the Defendant gives up the right to object and thereafter appeal any possible error, mistake, unfairness, injustice, or oversight that occurred during the course of the trial. See Respondent’s Appendix I, Plea. Furthermore, Defendant, did not move to withdraw the Plea or reserve the right to appeal the issue but merely now claims Judge Draper should be prevented from presiding over the case.IA. Likewise, the Defendant cannot enter into a plea, nor reserve the right to appeal the issues at bar or move to withdraw the plea, and then argue he was not afforded the opportunity to be heard in a prior motion. See State v. Gutierrez, 10 So. 3d 158 (Fla. 3d DCA 2009) (“A plea agreement is a contract and the rules of contract law are applicable to plea agreements.”) (A defendant cannot accept the benefit of a plea bargain without accepting its burden.). IB. Further, the Defendant’s entering into a plea estops the Defendant’s complaint that Judge Draper did not give sufficient notice of the trial date violated due process. Again, the defendant cannot accept the benefit of a plea without accepting its burden. State v, Gutierrez, supra. Moreover, even as noted by the Defendant on page 15 if the Complaint for Writ of Prohibition: “The trial judge, while admitting to the providing less than two hours’ notice for trial, does not assert that it was legally sufficient, but claims that it had no other alternative.” These issues are waived by the Defendant’s entering into a plea. See Siuda v. State, 114 So. 3d 395 (Fla. 4 DCA 2013) (“Due process is not implicated . . . where there has been an agreement by defendant to pay restitution, notice and an opportunity to be heard, and an affirmative waiver.”). IC. The issues in the Second Motion to Disqualify are barred since the Defendant subsequently entered a plea and waived his rights for these issues to be heard. See Plea, Respondent’s Appendix I. Further, these issues are not dispositive 7of the case and “[i]t is clear that a change of judicial personnel would not have disposed of the case.” Duckworth v. State, 469 So. 2d 913 (Fla. Ist DCA 1985). Il. THE TRIAL COURT HAS JURISDICTION OVER THE CASE ILA. Petitioner argued the 5/10 recapture periods are separate time periods and the Trial Should have commenced ten days after the Hearing on the Notice of Expiration. This argument, however, was waived, when the Defendant initially acquiesced to the trial date being set for December 12, 2017, and entered into a Plea. The plea agreement states that the defendant gives up his right to object and thereafter appeal any possible error, mistake, unfairness, injustice, or oversight that occurred during the course of the trial. Respondent’s Appendix I. Therefore, Defendant has waived and acquiesced to argue a speedy trial defense. See State ex rel. Leon v. Baker, 238 So. 2d 281 (Fla. 1970) (“We agree with the contention that doctrines of waiver and acquiescence are fully applicable to speedy trial cases.”); Grimes v. State, 872 So. 2d 286 (Fla. 4th DCA 2004) (Appellant alleges a speedy trial violation, which could have been raised as an issue on appeal but was waived when he pled guilty.); Graulich v. State, 287 So. 2d 114 (Fla. 3d DCA 1973) (Judgment affirmed when appellant entered a guilty plea and then appealed the denial of her motion for discharge pursuant to the speedy trial rule.).ILB. Defendant recognizes that a continuance or unavailability occurring after the expiration of the speedy trial period but before the conclusion of the recapture period is grounds for a waiver. State v. Nelson, 26 So. 3d 570 (Fla. 2010). Defendant acquiesced to the original setting of the trial for December 12, 2017, and thus, Nelson, 26 So. 3d 570 supports the State’s position and not the Defendant’s. The State’s unpreparedness for trial is not the issue here. Similarly, Petitioner has cited, Hajal v. State, 864 So. 2d 1167, 1169 (Fla. 5th DCA 2004), in support of its argument that a waiver of speedy trial cannot be implied by counsel’s failure to appear by 10:30 a.m. for trial if the court believed it had to conduct the trial on December 13, 2017. Hajal v. State, supra, however, establishes that “[w]e do not agree that the court can infer a request for continuance and waiver of Petitioner’s speedy trial right on this record, even given the “custom.” In this Marion County case, the custom and practice at status conference was to give defense counsel three options: 1) set the case for trial, 2) schedule a date for change of plea, or 3) request a continuance. Jd. “Because counsel’s status report did not announce that Petitioner was ready for trial or to change his plea, the court inferred the last remaining option which was a continuance with a waiver of speedy trial. The appellate court did not agree and stated the court could not infer a request for a continuance as a waiver of speedy even given the “custom.” /d. Again this is not the factual scenario here and this case should be discounted.IIC. In the instant case, the Defendant entered a plea to the charge, without preserving its rights to appeal the issues raised herein and did not move to withdraw the plea. Thus, the Petitioner has waived it right to contest the issues herein. Petitioner aptly cites Busch v. State, 937 So. 1148 (Fla. 5th DCA 2006) which involved an appeal where the appellant entered a plea of no contest to a felony DUI but reserved her right to appeal the speedy trial issue. This is not the case here. Thus, Respondent requests this Honorable Court to order the Defendant to appear for sentencing as called for by his Plea before the Honorable Judge Draper. (Respondent’s Appendix I and J). CONCLUSION Based on the arguments and authorities presented herein, the State requests the Complaint for Writ of Prohibition to be dismissed. Respectfully submitted, ARAMIS D. AYALA, STATE ATTORNEY Carol Levin Reiss Assistant State Attorney Florida Bar # 501034 Post Office Box 1673 Orlando, Florida 32802 Telephone: 407-836-2406 PCF@sao9.org 10CERTIFICATION I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by electronic mail to counsel for Appellant, Carlus Haynes, Esquire champ@fighting4ulaw.com; 8615 Commodity Circle, Unit 6, Orlando, FL 32819 by e-mail onthis _9*" day of February, 2018. CERTIFICATE OF COMPLIANCE | HEREBY CERTIFY that the size and style of type used is this Response is in 14- point Times New Roman, in compliance with Fla. R. App. P. 9.210(a)(2). Respectfully submitted, ARAMIS D. AYALA STATE ATTORNEY y . Carol Levin Reiss Assistant State Attorney Florida Bar # 501034 Post Office Box 1673 Orlando, Florida 32802 Telephone: 407-836-2406 PCF@sa09.org 11