DAVID MATTHEW MILLER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Miller sought a writ of prohibition to prevent the trial court from rescinding its order dismissing charges against him for entrapment. The State conceded the petition should be granted, and the court held that the trial court lacked jurisdiction to rescind the dismissal because it failed to timely rule on the State's motion for rehearing, which was therefore deemed denied.
The trial court lacked jurisdiction to rescind its order of dismissal. Under Rule 3.192, when the trial court failed to rule on the State's motion for rehearing within 40 days, the motion was deemed denied, and the trial court could not thereafter rescind the dismissal order.
[1] A trial court's order rescinding a prior dismissal is a nullity when the court fails to rule on a motion for rehearing within the time prescribed by rule.
[2] Under Florida Rule of Criminal Procedure 3.192, a motion for rehearing is deemed denied if the trial court fails to issue an order within 40 days of the order for which r…
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Join FLexlaw to unlock all legal intelligence“When an appeal by the state is authorized by Florida Rule of Appellate Procedure 9.140, or sections 924.07 or 924.071, Florida Statutes, the state may file a motion for rehearing within 10 days of an order subject to appellate review... If no order is filed within 40 days, the motion is deemed denied.”
The operative rule establishing the 40-day deadline and automatic denial provision upon which the court's holding is based.
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Join FLexlaw to unlock all legal intelligenceMiller was charged in Seminole County Circuit Court with unlawful travel to meet a minor and computer solicitation of a child. The trial court granted…
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ON CONCESSION OF ERROR
Petitioner, David M. Miller, seeks a writ of prohibition to prohibit the trial court from proceeding with the underlying action. The State commendably concedes that the petition should be granted.
Miller was charged in Seminole County Circuit Court Case No. 2013-CF000153A with unlawful travel to meet a minor and computer solicitation of a child. He filed an amended motion to dismiss information based on entrapment pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The trial court granted the motion on June 23, 2014. On July 2, 2014, the State filed a motion to rescind the court order dismissing the information and setting a hearing on Miller’s amended motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.192. On September 5, 2014, the trial court granted the State’s motion.
Miller then filed a petition for writ of prohibition in this Court. He contends that the trial court lacked jurisdiction to rescind its June 23, 2014, order of dismissal because, under rule 3.192, when the trial court failed to rule on the State’s motion, it was deemed denied.1 Miller asks that this Court issue a writ preventing the trial court from acting in excess of its authority as the matter stands dismissed.
We issued an order staying the proceedings below and ordered the State to respond. In its response, the State agreed that the trial court had until August 4, 2014, to rule on the motion for rehearing, and when it failed to do so, the motion was deemed denied. No timely appeal was taken. As a result, the State concedes that the September 2, 2014, order rescind*56ing the dismissal was a nullity and that the petition should be granted.
We accept the State’s concession and grant the petition for writ of prohibition. We quash the trial court’s September 5, 2014, “Order Rescinding This Court’s Order Dismissing The Information and Setting Defendant’s Amended Motion to Dismiss for Hearing.”
PETITION GRANTED; ORDER QUASHED.
PALMER, ORFINGER and BERGER, JJ., concur.