Salzero's counsel did not object to the trial date of August 19, 1996. The court stated that were it not for this Court's decision in Stuart v. State, 360 So.2d 406 (Fla. 1978), holding that a defense counsel has no duty to correct a trial court's erroneous impression that the trial date would be timely, it would hold that Salzero not be discharged because Salzero contributed to the delay by failing to object. The court then certified the following question:
Had Salzero's counsel complained at that time that the rule would be violated by a trial on August 19, 1996, the trial court could have avoided the error. Were it not for the Florida Supreme Court's decision in Stuart v. State, 360 So.2d 406 (Fla. 1978), holding that a defense counsel is under no duty to correct a trial court's erroneous impression that the trial date would be timely, we would hold that Salzero, through his counsel, was not without fault that the trial date was beyond the time contemplated by rule 3.191(p)(3), and thus that Salzero was not entitled to be discharged. We do observe that in 1978 the supreme court in Stuart v. State was dealing with an earlier version of rule 3.191 which did not contain the "no fault" language we are discussing here, which language was added in 1984.
Fla. R.Crim. P. 3.191(c) (emphasis added). Petitioner relies on Moore v. State, 368 So.2d 1291, 1292 (Fla.1979), and Stuart v. State, 360 So.2d 406, 409 (Fla.1978), and argues that the emphasized language above was not satisfied because the prospective jurors were not sworn for voir dire in the courtroom for this specific trial.Moore and Stuart held that the swearing of a large number of prospective jurors at the beginning of the week was not alone sufficient to commence trial.
It does not follow, however, that we accepted any of those arguments in denying the subject petition as a court is always privileged to deny a prohibition petition based on any reason appearing in the record, even though not raised by the respondent. See Stuart v. State, 360 So.2d 406, 408 (Fla. 1978). We accordingly conclude that the prior denial of the defendant's petition for a writ of prohibition does not, in view of our past practices, constitute a law of the case bar to the defendant's speedy trial claim presented on this appeal.
State ex rel. Leon v. Baker, 238 So.2d 281 (Fla. 1970); Nelson v. State, 450 So.2d 1223 (Fla. 4th DCA 1984). While we note that defendant's silence at the August 31 hearing was not a waiver of his right to speedy trial, State v. Ansley, 349 So.2d 837 (Fla. 1st DCA 1977), we agree with the trial court's determination that counsel's statement at the November 26 hearing represented an acceptance on behalf of the defendant to be tried on December 10. Defendant relies on Stuart v. State, 360 So.2d 406 (Fla. 1978), for reversal. In Stuart, the state made several requests for continuances.
Nor do the cases cited by Rogers require a different conclusion. In Stuart v. State, 360 So.2d 406 (Fla. 1978), the trial court did not determine whether the absence of a witness constituted an "exceptional circumstance." 360 So.2d at 412.
In the absence of an order of extension entered by the trial court during the speedy trial period, we will not find that the time was extended, no matter how compelling or exceptional the circumstances may appear. State v. Barnett, 366 So.2d 411 (Fla. 1978); Stuart v. State, 360 So.2d 406 (Fla. 1978); State ex rel. Lee v. Harper, 372 So.2d 1012 (Fla. 1st DCA 1979); Mullin v. State, 307 So.2d 829 (Fla. 3rd DCA 1974); Pouncy v. State, 296 So.2d 625 (Fla. 3rd DCA 1974). (Emphasis supplied)
We hold that mere silence alone on the part of the defendant or his counsel at a proceeding in which the defendant's trial date is set beyond the speedy trial period is not a waiver pursuant to Fla.R.Crim.P. 3.191(d)(2)(i). See also, Stuart v. State, 360 So.2d 406 (Fla. 1978). There being no extension of time granted the state pursuant to Section 39.05(7)(c), Florida Statutes (1979), the petition should have been dismissed with prejudice.
We find no merit in the first two points. State v. J.H., 295 So.2d 698 (Fla. 1st DCA 1974); Stuart v. State, 360 So.2d 406 (Fla. 1978); Christopher v. State, 369 So.2d 97 (Fla. 2d DCA 1979); State v. Thurston, 372 So.2d 959 (Fla. 3d DCA 1979). As to the third point, an appellant has the burden of demonstrating error in a trial court's ruling. See: State v. Hill, 76 So.2d 155 (Fla. 1954); Ramos v. Amidon, 263 So.2d 602 (Fla. 2d DCA 1972); State v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978); Stuart v. State, 360 So.2d 406 (Fla. 1978).
United States v. Mejias, 417 F. Supp. 579, 581 (S.D.N.Y. 1976) affirmed 552 F.2d 435 (2nd Cir.), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977) (Under the Act, "[a] trial in a jury case is deemed to commence at the beginning of voir dire"). Cf. Stuart v. Florida, 360 So.2d 406, 409 (Fla. 1978) (Under Florida speedy trial rules, the seating of jurors at voir dire denotes the commencement of trial). We also note that the "Plan for Prompt Disposition of Criminal Cases," United States District Court for the Southern District of Florida, promulgated pursuant to the Speedy Trial Act, 18 U.S.C. ยง 3165(e)(3), specifically states that a jury trial commences at the beginning of voir dire. While neither this plan nor any other promulgated pursuant to the Act can bind our interpretation of the Act, it does add force to our decision.