STEVEN BEMBRIDGE
v.
THE STATE OF FLORIDA
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Steven Bembridge sought a writ of prohibition to prevent trial pending an evidentiary hearing on his section 776.032 motion to dismiss. The court dismissed the petition, holding that prohibition was an improper remedy for challenging trial court procedure rather than immunity on the merits, and that the petition was also untimely under the certiorari standard.
Prohibition does not lie when a defendant challenges the trial court's application of procedure rather than asserting entitlement to immunity from prosecution on the merits. A petition for writ of certiorari is the proper vehicle for such review, but Bembridge's petition was untimely as it was filed more than thirty days after the trial court's order.
[1] Prohibition does not lie where a defendant claims the trial court applied the wrong procedure, rather than asserting on the merits that a defendant is entitled to immunit…
[2] A petition for writ of certiorari is the proper vehicle to seek review of a trial court's ruling on a motion to dismiss filed pursuant to section 776.032, Florida Statute…
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Join FLexlaw to unlock all legal intelligence“Prohibition does not lie where a defendant claims that the trial court applied the wrong procedure, rather than asserting on the merits that a defendant is entitled to immunity against further prosecution.”
Establishes that prohibition is the wrong remedy for procedural challenges and requires a merits-based immunity claim.
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Join FLexlaw to unlock all legal intelligenceBembridge filed a motion to dismiss pursuant to section 776.032, Florida Statutes. The trial court denied the motion as untimely rather than addressin…
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PER CURIAM.
On Motion to Dismiss
By petition for writ of prohibition, Steven Bembridge seeks to restrain the trial court from conducting a trial before it entertains an evidentiary hearing on his motion to dismiss filed pursuant to section 776.032, Florida Statutes (2022). However, the motion below was denied not on the merits, but rather as untimely. Prohibition does not lie where a defendant claims that the trial court applied the wrong procedure, rather than asserting on the merits that a defendant is entitled to immunity against further prosecution. See Edwards v. State, 351 So. 3d 1142, 1146 (Fla. 1st DCA 2022); Corbett v. State, 348 So. 3d 645, 648 (Fla. 5th DCA 2022); Jefferson v. State, 264 So. 3d 1019, 1023 (Fla. 2d DCA 2018). Rather, a petition for writ of certiorari would have been the proper vehicle to seek review of the trial court’s ruling. See Conover v. State, 346 So. 3d 56, 56–57 (Fla. 4th DCA 2022); see, e.g., Penalver v. State, 338 So. 3d 990 (Fla. 3d DCA 2022) (reviewing by petition for writ of certiorari order dismissing section 776.032 motion to dismiss based on trial court’s conclusion that motion was not sworn and did not rely on record evidence by certiorari); Acostafigueroa v. State, 373 So. 3d 908 (Fla. 4th DCA 2023). However, we lack jurisdiction to consider the petition as a petition for writ of certiorari because it was filed more than thirty days after rendition of the trial court’s order. Conover, 346 So. 3d at 57. Accordingly, the State’s motion to dismiss is granted.
Dismissed.
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Citator
Cited By (14 total)
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Bembridge v. State, 338 So. 3d 990 (Fla. 3d DCA 2024)…rather as untimely. Prohibition does not lie where a defendant claims that the trial court applied the wrong procedure, rather than asserting on the merits that a defendant is entitled to immunity against further prosecution. See Edwards v. State, 351 So. 3d 1142, 1146 (Fla. 1st DCA 2022); Corbett v. State, 348 So. 3d 645, 648 (Fla. 5th DCA 2022); Jefferson v. State, 264 So. 3d 1019, 1023 (Fla. 2d DCA 2018). Rather, a petition for writ of certiorari would have been the proper vehicle to seek review of the t…1 / 5
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Giselle Gattorno and David Iglesias v. Souto, 390 So. 3d 134 (Fla. 3d DCA 2024)
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Nadell v. Apachula B. Hursey, 363 So. 3d 1135 (Fla. 3d DCA 2023)…Indeed, if Nadell’s petition challenged some procedural aspect of the trial court’s disposition of his SYG Motion, then certiorari might be an appropriate remedy. See Edwards v. State, 351 So. 3d 1142, 1146-47 (Fla. 1st DCA 2022); Corbett v. State, 348 So. 3d 645, 647-48 (Fla. 5th DCA 2022); see also Penalver v. State, 338 So. 3d 990, 990 (Fla. 3d DCA 2022) (granting certiorari and quashing an order denying the petitioner’s SYG of Appellate Procedure 9.130’s schedule of appealable nonfinal orders. As menti…1 / 3
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jefferson v. State, 264 So. 3d 1019 (Fla. 2d DCA 2018)
- Bembridge v. State, 338 So. 3d 990 (Fla. 3d DCA 2024)