Lozano v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOSE GUERRERO LOZANO, JR., )
)
Appellant, )
)
v. ) Case No. 2D15-4715
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed October 14, 2016.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Collier County; Frederick R. Hardt, Judge.
Jose Guerrero Lozano, Jr., pro se.
PER CURIAM.
Jose Guerrero Lozano appeals the order summarily denying his motion
alleging ineffective assistance of counsel under Florida Rule of Criminal Procedure
3.850. We affirm, in part, reverse, in part, and remand for further proceedings.
In his motion, Lozano argued that his trial counsel was ineffective for
failing to assert both his procedural and his constitutional speedy trial rights. The
postconviction court correctly denied Lozano's claim with regard to his speedy trial
rights under Florida Rule of Criminal Procedure 3.191; the record contains numerous
requests for continuances by counsel. See State v. Burgess, 153 So. 3d 286, 288 (Fla.
2d DCA 2014) ("Generally, a defense request for a continuance waives the right to
speedy trial." (citing Banks v. State, 691 So. 2d 490, 491 (Fla. 4the DCA 1997))); see
also State v. Abrams, 350 So. 2d 1104, 1105 (Fla. 4th DCA 1977) ("The acts of an
attorney on behalf of a client will be binding on the client even though done without
consulting him and even against the client's wishes.") (first citing McArthur v. State, 303
So. 2d 359 (Fla. 3d DCA 1974); then citing Brown v. State, 328 So. 2d 497 (Fla. 3d
DCA 1976))).
The postconviction court, however, failed to address Lozano's claim of
ineffective assistance of counsel for failure to assert his constitutional right to speedy
trial. See State v. Naveira, 873 So. 2d 300, 308 (Fla. 2004) ("Once the speedy trial rule
has been waived, it is supplanted by the constitutional speedy trial period which is
measured in tests of reasonableness and prejudice, not specific numbers of days."
(quoting Blackstock v. Newman, 461 So. 2d 1021, 1022 (Fla. 3d DCA 1985))); Gamble
v. State, 996 So. 2d 946, 947 (Fla. 2d DCA 2008) (citing Naveira, 873 So. 2d at 308).
Accordingly, we reverse the postconviction court's order insofar as it failed
to address Lozano's claim concerning his constitutional speedy trial right and remand
for the court to address that claim. If the postconviction court determines that the claim
is facially insufficient, the court should strike it with leave to amend within sixty days.
See Fla. R. Crim. P. 3.850(f)(2).
Affirmed, in part, reversed, in part, and remanded.
LaROSE, MORRIS, and SLEET, JJ., Concur.
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