# UNITED STATES of America, Plaintiff-Appellee, v. Floyd Lentellis GARRETT, Defendant-Appellant > Court of Appeals for the Ninth Circuit · July 16, 1998 · 149 F.3d 1018 URL: https://www.frixlaw.com/law-library/cases/9491320 ## Case - **Full name:** 98 Cal. Daily Op. Serv. 5576, 98 Daily Journal D.A.R. 7783 United States of America v. Floyd Lentellis Garrett - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** July 16, 1998 - **Citations:** 149 F.3d 1018; 98 Cal. Daily Op. Serv. 5576; 1998 U.S. App. LEXIS 16253; 1998 WL 395029 - **Precedential status:** Published - **Opinion:** Dissent by Tashima - **Judges:** Reinhardt, Tashima, Shadur - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9491320 ## Opinion text TASHIMA, Circuit Judge, dissenting in part: I concur in Part I of the majority opinion; however, I dissent from Part II and from the judgment. The majority has misapplied United States v. D'Amore, 56 F.3d 1202 (9th Cir.1995), and the “compelling purpose” test in this case. D'Amore involved a probation revocation *1026 hearing. 1 Id. at 1203 . Thus, any compelling purpose that would arise from a trial court’s need to manage a busy trial docket was necessarily absent in that case. The case that should control here is the case on which D 'Amove relied, United States v. Lillie, 989 F.2d 1054 (9th Cir.1993), which applied the “compelling purpose” test in a trial context. Id. at 1055 . There, we clearly articulated the balancing which should control this case: If the motion for substitution necessarily leads to a continuance because the new lawyer isn’t prepared to proceed, the court may (depending on the reasons for the proposed substitution) have discretion to deny the request: A defendant’s right to retained counsel of his choice doesn’t include the right to unduly delay the proceedings .... In this ease, then, it would have been perfectly appropriate for the district court to inquire into the new counsel’s preparedness, and to condition the granting of the motion on defendant’s (and new counsel’s) willingness to continue with the existing schedule. Id. at 1056 . That is exactly what the district court did here. It inquired of new counsel’s preparedness and learned that new counsel was unwilling and unable “to continue with the existing schedule.” Given the history of delay in this year-old case 2 — that the defendant had discharged two appointed attorneys, then elected to proceed pro se, and then retained a third attorney the day before trial was scheduled to commence after ample warning by the court that if a new attorney were to be retained, it must be done in a timely manner — it was not an abuse of discretion for the district court to deny the defendant’s last-minute request for a one-month continuance of the trial in order to substitute newly-retained counsel. I would affirm the judgment of conviction; accordingly, I dissent. . Revocation hearings are, of course, summary proceedings and do not involve the kinds of scheduling considerations and problems associated with jury trials. In fact, in D’Amore the defendant represented that if new counsel could be substituted, a plea agreement probably could be reached and the need for a hearing obviated. D'Amore, 56 F.3d at 1204 . . The presumptive period within which a non-complex case should be brought to trial under the Speedy Trial Act is 70 days from the filing of the indictment or the defendant's first appearance. See 18 U.S.C. § 3161 (c)(1). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9491320. Public record. Not legal advice.