HONORABLE GERALD KLEIN, AS JUDGE OF THE COUNTY COURT OF DADE COUNTY, FLORIDA, APPELLANT,
v.
AL SMITH, HY EVAL AND MYRON WISOTSKY, APPELLEES
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Judge Klein appeals a circuit court's grant of a writ of prohibition that prevented the county court from proceeding with misdemeanor charges against the defendants. The court reverses, holding that prohibition does not lie because the county court had jurisdiction when it granted the state's motion to extend the speedy trial period, and prohibition cannot be used to revoke orders already lawfully entered.
Reversal is required because prohibition does not lie. The county court had jurisdiction when it entered the extension order, as speedy trial time had not expired at that time, and prohibition cannot be used to revoke an order already lawfully entered within the court's jurisdiction.
[1] Prohibition may only be granted when a lower court is without jurisdiction or attempting to act in excess of jurisdiction.
[2] Prohibition is a preventive remedy and cannot be used to revoke an order already entered.
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Join FLexlaw to unlock all legal intelligence“prohibition may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction; it is preventive and not corrective in that it commands the one to whom it is directed not to do the thing which the supervisory court is informed the lower tribunal is about to do, and its purpose is to prevent the doing of something not to compel the undoing of something already done, as it cannot be used to revoke an order already entered”
Establishes the fundamental limitation on the writ of prohibition—it cannot be used to undo orders already entered by a court acting within its jurisdiction.
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Join FLexlaw to unlock all legal intelligenceThe state filed a motion to extend the speedy trial period under Florida Rule of Criminal Procedure 3.191, claiming exceptional circumstances requirin…
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HENDRY, Judge.
Appellant seeks review of the circuit court appellate division’s order granting a writ of prohibition absolute commanding that the county court be restrained from proceeding further with regard to prosecution on six misdemeanor charges against appellees/relators. We hold that reversal is in order, as prohibition does not lie.
In determining whether the lower court correctly found that appellees were entitled to discharge for violation of their right to speedy trial under Florida Rule of Criminal Procedure 3.191, we have closely scrutinized the facts and circumstances attendant to the state’s “motion for order extending period of time established by Rule 3.191 for trial.”
The state filed its motion for extension on the basis that “exceptional circumstances exist which require a reasonable and necessary delay of the trial.”1 Copies of the motion and notice of hearing were mailed to appellees, and oral notification of the hearing was communicated by telephone. Hearing was had before the Honorable Judge Gerald J. Klein on April 24,1978 and the state’s motion was granted and written order entered, extending time for trial to and including thirty days from the date of the order. The following day, April 25, 1978, appellees filed motions for discharge under Rule 3.191, and orders denying same were entered on that date.
Thereafter appellees filed suggestions for writ of prohibition in the appellate division of the circuit court, contending inter alia, that the appellees were entitled to discharge because the state’s recited reasons for extension were not “exceptional circumstances” as defined by Rule 3.191(f). An order to show cause was issued in each case, return was filed; ultimately, the lower tribunal rendered a decision that its writ of prohibition should be made absolute on the basis that the state failed to demonstrate exceptional circumstances.
It must be emphasized that prohibition may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction; it is preventive and not corrective in that it commands the one to whom it is directed not to do the thing which the supervisory court is informed the lower tribunal is about to do, and its purpose is to prevent the doing of something not to compel the undoing of something already done, as it cannot be used to revoke an order already entered. State ex rel. Harris v. McCauley, 297 So. 2d 825 (Fla.1974); English v. McCrary, 348 So. 2d 293 (Fla.1977); State ex rel. Sarasota County v. Boyer, 360 So. 2d 388 (Fla.1978).
We have computed the time periods relevant to the instant case and must conclude that the motion for extension of time for trial was timely made, and the county court’s order granting the extension was made within the time prescribed by the rule. Thus the extension order was within the jurisdiction of the county court, and the circuit court should have discharged the writ as it could not revoke an order timely obtained and divest the county court of jurisdiction. See, State ex rel. Mullins v. Swigert, 345 So. 2d 386 (Fla. 1st DCA 1977).
It is clear that speedy trial time had not expired when the state obtained the extension order, and jurisdiction remained with the trial court at the time that it entered the extension order. See, State ex rel. Smith v. Rudd, 347 So. 2d 813 (Fla. 1st DCA 1977). In the instant case, the record before the appellate division of the circuit court showed on its face that speedy trial time had not run when the appellees moved for discharge. Therefore, the circuit court erred in granting the writ of prohibition.
Reversed.
. For the purposes of this appeal, we need not consider the merits of the parties’ arguments as to what circumstances constitute a sound basis for extension of speedy trial time under Rule 3.191(f).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dep't OF Child. & Fam. Servs. v. In the Interest OF J.C., 847 So. 2d 487 (Fla. 3d DCA 2002)…t a trial judge’s authority through misuse of the appellate review process will not be countenanced. Prohibition is an extraordinary remedy which will only be granted to restrain the exercise of judicial power where none exists. See Klein v. Smith, 366 So. 2d 1206 (Fla. 3d DCA 1979). It cannot be used to revoke an order that has already [*492] been entered or to prevent the lower court from determining questions of jurisdiction. See Hamlin v. East Coast Properties, Inc., 616 So. 2d 1175 (Fla. 1st DCA 1993); U…
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State v. Honorable L. R. Huffstetler, Jr., 409 So. 2d 134 (Fla. 5th DCA 1982)…. Where, as in this case, the trial court grants an extension of time for trial because it finds “unusual circumstances” and the extension order is entered before speedy trial time has run, jurisdiction of the trial court continues, Klein v. Smith, 366 So. 2d 1206 (Fla.3d DCA 1979), even if the appellate court believes the extension order to have been in error.1 State ex rel. Mullins v. Swigert, 345 So. 2d 386 (Fla. 1st DCA 1977). We therefore deny the writ of prohibition without prejudice to the right of pe…
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Restrepo v. The Honorable James Henderson, 408 So. 2d 826 (Fla. 3d DCA 1982)…817 (Fla. 1st DCA), cert. denied, 359 So. 2d 1222 (Fla.1978); State ex rel. Smith v. Rudd, 347 So. 2d 813 (Fla. 1st DCA 1977); State v. Wise, 336 So. 2d 3 (Fla. 4th DCA 1976); see Muller v. State, 387 So. 2d 1037 (Fla. 3d DCA 1980); Klein v. Smith, 366 So. 2d 1206 (Fla. 3d DCA 1979). Instead, nearly three months after the speedy trial period had ended, the trial court entered a nunc pro tunc order extending the time for commencing trial. In view of our holding that further proceedings against the defendant…
Authorities Cited
- Carey English v. McCRARY, 348 So. 2d 293 (Fla. 1977)
- State of Fla. ex rel. Arthur Falkner v. Honorable John R. Blanton, 297 So. 2d 825 (Fla. 1974)
- State of Fla. ex rel. Sarasota Cnty. v. Chief Judge Tyrie A. Boyer, 360 So. 2d 388 (Fla. 1978)
- The State of Fla. upon the relation of Leroy Smith v. Rudd, 347 So. 2d 813 (Fla. 1st DCA 1977)
- State ex rel. Mary Louise Mullins v. The Honorable William T. Swigert, 345 So. 2d 386 (Fla. 1st DCA 1977)