THOMAS A. ARNONE, PETITIONER,
v.
STATE OF FLORIDA, SCOTT CHARLES NELSON, JOHN E. SHEA, AND GERALD L. FLORAND, RESPONDENTS
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Thomas Arnone filed a petition challenging a chief judge's sua sponte order reassigning and consolidating his racketeering case with another defendant's case. The Florida District Court of Appeal dismissed the petition, holding that Arnone had adequate alternative remedies available through severance motions and direct appeal rather than certiorari or prohibition.
The court dismissed the petition, holding that writ of prohibition was unavailable because the consolidation had already occurred and could not now be prohibited, and that certiorari was inappropriate because Arnone had adequate alternative remedies: he could seek a severance under Florida Rule of Criminal Procedure 3.152 in the trial court and could raise the consolidation issue on direct appeal following conviction.
[1] A writ of prohibition cannot be used to prevent a chief judge from transferring a criminal case from one division to another.
[2] A writ of prohibition cannot be used to prohibit an action that has already occurred.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Florida Rule of Criminal Procedure 3.151(a) authorizes consolidation of cases involving 'related' offenses, i.e., offenses 'based on the same act or transaction or on 2 or more connected acts or transactions.' The Florida Supreme Court interprets this language to mean that the offenses must be 'connected in an episodic sense.'”
Establishes the legal standard for permissible consolidation of criminal cases
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Join FLexlaw to unlock all legal intelligenceArnone and two codefendants were charged with racketeering involving the sale of obscene magazines at the Varsity Theater between August 1994 and Apri…
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PER CURIAM.
Thomas A. Arnone filed a petition for writ of prohibition challenging the sua sponte order of the Chief Judge of the Tenth Judicial Circuit that reassigned and consolidated his criminal case with another criminal case. We treat the petition as one seeking certiorari review, and dismiss it for lack of jurisdiction. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646 (Fla. 2d DCA 1995).
The state charged Mr. Arnone and his two eodefendants with racketeering for the alleged sale of obscene magazines at the Varsity Theater between August 1994 and April 1996. His case was initially assigned to a division handled by Judge Cecelia Moore. In a separate information, the state charged Gerald L. Florand with racketeering and wholesale promotion of obscene material arising out of the alleged sale of videotapes at Video X-tra between January and March of 1996. Mr. Florand’s case was originally pending before Judge Oliver L. Green. The chief judge’s order, without a motion from any party and without any notice or hearing, reassigned Mr. Arnone’s case to Judge Green' and consolidated it with Mr. Florand’s ease, apparently for all purposes. Except for legal issues relating to obscenity, these cases appear to share nothing in common.
Neither party has addressed the propriety of a writ of prohibition as a method to prevent either a reassignment or a consolidation under these circumstances. We have found no case that relies upon a jurisdictional basis to prohibit a cMef judge from transferring a criminal case from one division to another. Although the complete consolidation described in the reassignment order seems odd, it has already occurred and, thus, cannot now be prohibited. See English v. McCrary, 348 So. 2d 293, 297 (Fla.1977). Accordingly, we see no basis to grant relief by issuing a writ of prohibition.
We next consider whether we can grant relief by treating the petition as one seeking common law certiorari. Florida Rule of Criminal Procedure 3.151(a) authorizes consolidation of cases involving “related” offenses, i.e., offenses “based on the same act or transaction or on 2 or more •connected acts or transactions.” The Florida Supreme Court interprets this language to mean that the offenses must be “connected in an episodic sense.” See Fotopoulos v. State, 608 So. 2d 784, 790 (Fla.1992) (citing Wright v. State, 586 So. 2d 1024, 1029-30 (Fla.1991)). These two eases appear to involve distinct defendants, locales, and times, and to share only some common legal issues.
Nevertheless, this court’s certiorari jurisdiction cannot be invoked unless the petitioner establishes that no adequate remedy is available on plenary appeal to correct the judicial error. See Parkway Bank, 658 So. 2d at 649. Case law is replete with examples of direct appeals that have resulted in reversed convictions following or upon improper consolidation or denial of severance. See, e.g., Porter v. State, 671 So. 2d 184 (Fla. 2d DCA 1996); Granville v. State, 625 So. 2d 1258 (Fla. 1st DCA 1993).
Because the consolidation was ordered without motion or notice, we conclude that Mr. Amone is entitled to seek a severance of the combined offenses pursuant to Florida Rule of Criminal Procedure 3.152 because the consolidated offenses are now treated “as if the prosecution were under a single indictment or information.” Fla. R.Crim. P. 3.151(b).
Thus, at least concerning the consolidation, Mr. Arnone has a possible pretrial remedy in the trial court, as well as a right to raise the issue on any subsequent direct appeal.
Petition for writ of certiorari dismissed.
DANAHY, A.C.J., and FRANK and ALTENBERND, JJ., concur.
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State v. Bjorkland, 924 So. 2d 971 (Fla. 2d DCA 2006)…days. We disagree. Certio-rari is an original proceeding designed to provide extraordinary relief. It is not intended to provide review when an error can be repaired on appeal. Tripp v. Salkovitz, 919 So. 2d 716 (Fla. 2d DCA 2006); Arnone v. State, 701 So. 2d 577 (Fla. 2d DCA 1997); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646 (Fla. 2d DCA 1995). Although the requirement of an irreparable injury is normally examined in the context of a pretrial certiorari proceeding where the appeal to rep…
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In the interest of E.H. v. Dep't of Child. & Fam. Servs., 161 So. 3d 572 (Fla. 2d DCA 2014)…direct appeal if and when a final termination order is rendered. See Harris v. State, 99 So. 3d 952, 952 (Fla. 2d DCA 2012) (table decision) (dismissing petition without prejudice to raise the issue again on direct appeal); see also Arnone v. State, 701 So. 2d 577, 579 (Fla. 2d DCA 1997) (“[Tjhis court’s certiorari jurisdiction cannot be invoked unless the petitioner establishes that no adequate remedy is available on plenary appeal to correct the judicial error.” (citing Parkway Bank v. Fort Myers Armature W…
Authorities Cited
- Carey English v. McCRARY, 348 So. 2d 293 (Fla. 1977)
- Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646 (Fla. 2d DCA 1995)
- Konstantinos X. Fotopoulos v. State, 608 So. 2d 784 (Fla. 1992)
- Mac Ray Wright v. State, 586 So. 2d 1024 (Fla. 1991)
- Granville v. State, 625 So. 2d 1258 (Fla. 1st DCA 1993)
- Porter v. State, 671 So. 2d 184 (Fla. 2d DCA 1996)