STATE OF FLORIDA EX REL., ARTHUR MICHAEL NEVILLE, RELATOR,
v.
HONORABLE MURRAY GOODMAN, JUDGE OF THE CRIMINAL COURT OF RECORD IN AND FOR DADE COUNTY, FLORIDA, RESPONDENT
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The Florida District Court of Appeal issued a writ of prohibition preventing retrial of Arthur Michael Neville on an embezzlement charge after the trial court had previously dismissed the same information in open court without entering a written order. The court held that the state's failure to obtain a written, appealable order and the resulting violation of Neville's constitutional right to a speedy trial rendered the trial court without jurisdiction to proceed.
The trial court lacked jurisdiction to try Neville on the second information. The state's failure to secure a written, appealable order after Neville's discharge in open court, combined with the violation of his constitutional right to a speedy trial, warranted issuance of a writ of prohibition.
[1] A writ of prohibition may be issued to prevent a trial court from proceeding when a defendant has been denied their constitutional right to a speedy trial.
[2] A trial court's dismissal of an information in open court, even without a written order, can divest the court of jurisdiction to try the defendant on a subsequently filed…
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Join FLexlaw to unlock all legal intelligence“The right to a speedy trial is a constitutional right and is not dependent upon statute or rule of court.”
Establishes that the speedy trial right is constitutional and not merely statutory, supporting the court's ability to intervene by prohibition.
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Join FLexlaw to unlock all legal intelligenceNeville was charged by information on July 28, 1970, with embezzlement by a municipal employee for conduct allegedly occurring on June 3, 1969. The ca…
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This court has been presented with a suggestion for writ of prohibition which alleges a right to discharge from a criminal proceeding upon two grounds. The petitioner alleges that the trial court was without jurisdiction to try him because: (1) an information based upon the identical charge had previously been dismissed by the trial court; and, (2) he has been *56denied his constitutional right to a speedy trial on the charge. We issued a rule to show cause and the state has responded thereto.
The record reveals that Arthur Michael Neville was charged by information filed on July 28, 1970, with embezzlement by a municipal' employee. The offense was alleged to have occurred on June 3, 1969. The cause came on for trial on April 5, 1971. The trial judge in open court dismissed the information with the announcement that he would not try a three dollar case. No written order was entered but the petitioner was discharged from custody.
No appeal was taken by the state and the state’s attorney simply filed the same information over again. The second information does not only charge the same crime on the same facts but it is word for word the same information upon which the petitioner has been in peril since July 28, 1970. Petitioner’s motion to dismiss the second information setting forth his discharge in open court has been denied and petitioner is about to be tried on the second information.
The return to the rule to show cause issued upon the suggestion is entirely negative in character, alleging only that, “Nothing appears in the record filed before this honorable court to show that the respondent lacks jurisdiction or has exceeded it.
We have determined that the suggestion states a prima facie case for relief by way of the writ of prohibition and that the trial court lacks jurisdiction to try the petitioner upon the second information. The right to a speedy trial is a constitutional right and is not dependent upon statute or rule of court. State ex rel. Johnson v. Edwards, Fla. 1970, 233 So.2d 393; Dickey v. Circuit Court, Gadsden County, Quincy, Fla., Fla. 1970, 200 So.2d 521; State ex rel. Bird v. Stedman, Fla.App.1969, 223 So.2d 85. Where a clear violation of the right is made to appear an appellate court will issue the writ of prohibition to prevent an unreasonable violation of the right. See Leonard v. McIntosh, Fla.App. 1970, 237 So.2d 809.
As a second and additional ground for the issuance of the writ in this instance, we hold that the state’s failure to make any effort to secure a written, and therefore appealable, order after petitioner’s discharge in open court brings this case within the purview of the law announced by the Supreme Court of Florida in Pena v. Schultz, Fla. 1971, 245 So.2d 49.
It is therefore ordered that the preemp-tory writ in prohibition issued, effecting the discharge of Arthur Michael Neville.
It is so ordered.
(dissenting).
We have held that a writ of prohibition would not issue on a claim of res judicata as this issue could properly be raised and determined in the trial court. State ex rel. Dawalt v. Turner, Fla.App. 1964, 168 So.2d 772. See also Robinson v. United States, 284 F.2d 775 (5th Cir. 1960).
The record before us does not show that any demand for speedy trial was ever made by Neville or that the issue of a speedy trial was ever raised or ruled upon in the trial court. There was no written or oral order discharging Neville and Pena v. Schultz, Fla. 1971, 245 So.2d 49 does not apply, in my opinion.
The suggestion for writ of prohibition should be
Denied.
SWANN, Chief Judge
(dissenting).
We have held that a writ of prohibition would not issue on a claim of res judicata as this issue could properly be raised and determined in the trial court. State ex rel. Dawalt v. Turner, Fla.App. 1964, 168 So. 2d 772. See also Robinson v. United States, 284 F. 2d 775 (5th Cir. 1960).
The record before us does not show that any demand for speedy trial was ever made by Neville or that the issue of a speedy trial was ever raised or ruled upon in the trial court. There was no written or oral order discharging Neville and Pena v. Schultz, Fla. 1971, 245 So. 2d 49 does not apply, in my opinion.
The suggestion for writ of prohibition should be
Denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sibert v. Hare, 276 So. 2d 523 (Fla. 4th DCA 1973)…be tried. Prohibition is an appropriate remedy to prohibit a trial court from proceeding where an accused is entitled to discharge under the speedy trial rule and his motion for such has been denied. State ex rel. Neville v. Goodman, Fla.App.1971, 254 So. 2d 55. Relator was entitled to be discharged under the provisions of Rule 3.191, RCrP as to the misdemeanor counts, Counts II and III of the amended information in Case No. 72-36153, provided he was continuously available for trial during the 90-day perio…
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Honorable Murray Goodman v. The State of Fla. ex rel. Arthur Michael Neville, 261 So. 2d 839 (Fla. 1972)…Certiorari denied. 254 So. 2d 55. ERVIN, Acting C. J., and CARLTON, ADKINS, BOYD and McCAIN, JJ., concur.…
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State v. Sweetman, 40 Fla. Supp. 195 (Palm Beach Cty. Cir. Ct. 1974)…attorney has represented to the court that he has often taken a vigorous position in the area of sentencing. Cases which have discussed the state attorney’s responsibilities in similar areas are — State ex rel. Nelville v. Goodman, (3rd DCA, 1971), 254 So. 2d 55; State v. Wolf, (3rd DCA, 1971), 249 So. 2d 736; and Pena v. Schultz, (Sup. Ct., 1971), 245 So. 2d 49. But the argument over whether delay is caused by one agency of the state or another chases its own tail. Whether delay is caused by one agency or…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dickey v. Cir. Court, 200 So. 2d 521 (Fla. 1967)
- State of Fla. ex rel. James A. Johnson v. Honorable Warren H. Edwards, 233 So. 2d 393 (Fla. 1970)
- Pena v. Schultz, 245 So. 2d 49 (Fla. 1971)
- The State of Fla. ex rel. Ulysses Bird v. The Honorable Carling Stedman, 223 So. 2d 85 (Fla. 3d DCA 1969)
- Robinson v. United States, 284 F.2d 775 (5th Cir. 1960)
- State of Fla. ex rel. Kenneth Dawalt v. Honorable Jack M. Turner, 168 So. 2d 772 (Fla. 3d DCA 1964)
- State v. Fancher, 237 So. 2d 809 (Fla. 2d DCA 1970)
- Leonard v. Honorable Russell H. McINTOSH, 237 So. 2d 809 (Fla. 4th DCA 1970)