We therefore decide this case based upon the record before us. Affirmative acceptance of a trial date outside of speedy trial constitutes a waiver of speedy trial, as does a stipulation announced to the court, but “mere silence” by the defendant when the trial date is set does not. See Saunders v. State, 436 So.2d 166, 168 (Fla. 2d DCA 1983); State v. Swint, 464 So.2d 242, 243 (Fla. 2d DCA 1985); see also State v. Ansley, 349 So.2d 837, 838–39 (Fla. 1st DCA 1977). On the present record, there is no proof of a waiver by any of the acceptable methods.
Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); see State v. Antonietti, 558 So.2d 192, 193 (Fla. 4th DCA 1990); see also Kelly v. Goldstein, 649 So.2d 921 (Fla. 4th DCA 1995). The burden to comply with the speedy trial rule is on the State. Saunders v. State, 436 So.2d 166, 169 (Fla. 2d DCA 1983). After March 4, 2002, the State still had the opportunity to have Dixon brought to trial as the speedy trial period had not run. For some reason, the State did not do so.
PER CURIAM. Affirmed. Saunders v. State, 436 So.2d 166 (Fla. 2d DCA 1983); Henshaw v. State, 390 So.2d 793 (Fla. 3d DCA 1980); Muller v. State, 387 So.2d 1037 (Fla. 3d DCA 1980).
There must, however, exist some record to support a finding that counsel did intend a waiver or that he acquiesced in a trial date beyond the speedy trial limit. See, e.g., Saunders v. State, 436 So.2d 166 (Fla. 2d DCA 1983). A state attorney's "understanding" that a defense continuance was requested has been deemed to be insufficient evidence of a waiver.
Nor is an off-the-record agreement by defense counsel to a trial date beyond the speedy trial period a valid waiver. In Saunders v. State, 436 So.2d 166 (Fla. 2d DCA 1983), defense counsel acquiesced to a trial date of January 11, 1982, which was beyond the speedy trial period, after the clerk of the court informed counsel that the trial judge had stated that no more cases would be heard in 1981. There was no transcript of that proceeding and the judge was not present. The court found that there was no effective waiver of speedy trial under Rule 3.191.