EX PARTE LYLL MCLEOD
v.
HONORABLE M. G. ROWE, AS CIRCUIT JUDGE FOR THE SEVENTH JUDICIAL CIRCUIT
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In this prohibition proceeding, the Florida Supreme Court addressed whether an assigned circuit judge could hear a petition for rehearing on a new trial order after his temporary assignment had expired. The Court held that while the judge had authority to grant the new trial motion before his assignment ended, he lacked authority to hear the subsequent rehearing petition without a new executive order of assignment.
An assigned judge may adjudicate a motion for new trial during his assignment period for complete disposition of the cause, even if heard after the assignment technically expires. However, the assigned judge lacks authority to hear a subsequent petition for rehearing without another executive order of assignment. The petition for rehearing should be considered by an authorized circuit judge if the case remains pending in the Circuit Court, or the jurisdiction may belong to the Criminal Court of Record since the defendant was acquitted of the original charge.
“the assigned Circuit Judge had authority to adjudicate on December 17, 1934, the motion for new trial duly made, for the complete disposition of the cause, though his assignment was limited to November 14, 1934”
Establishes that a judge's authority to dispose of a case extends slightly beyond the formal assignment period
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Join FLexlaw to unlock all legal intelligenceJudge M. G. Rowe was assigned by executive order to the Tenth Judicial Circuit in Polk County from October 29 to November 14, 1934. On November 9, 193…
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In an application for a Writ of Prohibition it appears that as authorized by the constitution and statute, the Governor by executive order assigned the Honorable M. G. Rowe, Judge of the Seventh Judicial Circuit to the Tenth Judicial Circuit in Polk County “for a period beginning Monday, the 29th day of October, A. D. 1934, and ending Wednesday, the 14th day of November, A. D. 1934”; that on November 9, 1934, in the Tenth Judicial Circuit in Polk County, Honorable M. G. Rowe, presiding, the petitioner charged by indictment with murder in the first degree, was found guilty of murder in the second degree; that on November 13, 1934, a motion for a new trial was filed, and on December 17, 1934, a new trial was granted by the Honorable M. G. Rowe, Circuit Judge, who then ordered the cause to be transferred to the Criminal Court of Record in Polk County and that the defendant be allowed to give bond to appear in the Criminal Court of Record;, that the bond was given as required; that on December 20, 1934, the State Attorney filed in the Circuit Court in Polk County a petition for rehearing on the order granting a new trial, to be heard by the Honorable M. G. Rowe in Polk County on January 10, 1935. A Rule in Prohibition was issued by this Court, December 29, 1934. By answer *445the Honorable M. G. Rowe in effect replied that he does not contemplate considering the petition for rehearing unless he is duly authorized by executive order. Under Section 4841 (3060) C. G. L., the assigned Circuit Judge had authority to adjudicate on December 17, 1934, the motion for new trial duly made, for the complete disposition of the cause, though his assignment was' limited to November 14, 1934. But the authority of the assigned Judge may not extend to an adjudication of the petition for rehearing on the order granting a new trial without another assignment by executive order, if such a rehearing is' proper procedure in a case of this nature.
It does not appear that the cause has been in fact transferred to the Criminal Court of Record, and if the cause is still pending in the Circuit Court, the propriety and merits of the petition for rehearing may be considered by an authorized Circuit Judge, since the petition was filed before the Court adjourned for the term.
The defendant petitioner having been in law acquitted of the charge of murder in the first degree by the verdict of guilty of murder in the second degree, the jurisdiction for further trial for the offense should be in the Criminal Court ,of Record.
As' it does not appear that the Honorable M. G. Rowe, the respondent Circuit Judge, will consider the petition for rehearing on the order granting a new trial to the defendant-petitioner without an appropriate executive order of assignment under the constitution and statute, the rule nisi should be and is hereby discharged.
It is so ordered.
Ellis, Terrell, Brown and Buford, J. J., concur.
Davis, J., concurs specially.
(concurring).—The case having been tried by an assigned judge and the assigned judge having exhausted his jurisdiction over the, case by granting a new trial, I am of the opinion that the order granting a new trial became final and conclusive and the term as to this particular case ended, when the motion for a new trial was, without reservation of the power to further consider it, definitely overruled. I therefore concur in the result and in so much of the opinion as is not inconsistent with the view here expressed.
' Buford, J., concurs.
[*446] Davis, J.
(concurring).—The case having been tried by an assigned judge and the assigned judge having exhausted his jurisdiction over the, case by granting a new trial, I am of the opinion that the order granting a new trial became final and conclusive and the term as to this particular case ended, when the motion for a new trial was, without reservation of the power to further consider it, definitely overruled. I therefore concur in the result and in so much of the opinion as is not inconsistent with the view here expressed.
' Buford, J., concurs.
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Virginia Willys Lucom (formerly Virginia Willys de Landa) v. Fay Hall Potter, 131 So. 2d 724 (Fla. 1961)…the regular county judge to the jurisdiction, the assigned circuit judge immediately lost jurisdiction to enter his order in the cause heard by him during the regular county judge’s absence. The law appears to be to the contrary. See McLeod v. Rowe, 118 Fla. 443, 159 So. 517; 30A Am.Jur., Judges, Sec. 248; cases in annotation in 134 A.L.R. 1129. It is also contended on behalf of the appellant that the regular county judge misconstrued the mandate of this court when he set the cause down “for trial,” and th…
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Wasley v. State, 254 So. 2d 243 (Fla. 4th DCA 1971)…ial Circuit in and for Pinellas County, Florida for the purpose of trying the case against Richard Lee Wasley extended through final disposition of that case including the consideration of any timely filed post verdict motions. McLeod v. Rowe, 1935, 118 Fla. 443, 159 So. 517. As to the precise date when Judge Cooper’s temporary assignment was concluded, we cannot say be [*245] cause we do not have the record to examine. Suffice it to say that such date necessarily had occurred at or prior to the time Wasley…