TOBY KEARNS A/K/A THOMAS NORMAN KEARNS, JR., AND LEON EUGENE ALLEN, PETITIONERS,
v.
THE HONORABLE JUDGE LAWRENCE L. KORDA, RESPONDENT
ANSTEAD, Judge.
The respondent trial judge granted petitioners’ motion to dismiss on the grounds that the statute under which the petitioners were being prosecuted was unconstitutional. See generally, State v. Benitez, 395 So. 2d 514 (Fla.1981). The state did not appeal. Subsequently, in Benitez, supra, the statute in question was found to be constitutional. The state then filed a motion before the respondent to reinstate the cause and the motion was granted. The petitioners now claim that upon dismissal the trial court lost jurisdiction and had no authority to reinstate the case. In response to an order to show cause the respondent has candidly conceded the validity of petitioners’ assertion. The respondent has not cited and we are unaware of any authority by which the trial court, after dismissal, could reinstate the action against the petitioners because of the issuance of an appellate decision in another case. See generally State v. Morris, 359 So. 2d 478 (Fla. 1st DCA 1978). Accordingly, the petition is granted and the respondent is directed to discharge the petitioners from further prosecution in Circuit Court Case No. 80-9398 CF A-B.
DOWNEY and MOORE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wander v. State, 471 So. 2d 83 (Fla. 5th DCA 1985)…been taken. Collins v. Hall, 117 Fla. 282, 157 So. 646 (1934). Therefore, that original judgment operated as an es-toppel against the refiling of the same trafficking charge. See Morley v. State, 446 So. 2d 259 (Fla. 1st DCA 1984); Kearns v. Korda, 400 So. 2d 202 (Fla. 4th DCA 1981). The principle of res judicata is applicable and, accordingly, we reverse and remand for discharge of the defendant. REVERSED. ORFINGER and COWART, JJ., concur.…
Authorities Cited
- State v. Benitez, 395 So. 2d 514 (Fla. 1981)
- State v. Morris, 359 So. 2d 478 (Fla. 1st DCA 1978)