THE STATE OF FLORIDA, APPELLANT,
v.
MICHAEL VISCITO, JOSEPH COVELLO, JOSEPH IPPOLITO, ANTHONY ROMANO AND BARRY MARK, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Florida appeals the dismissal of four informations filed by an assigned State Attorney, challenging the lower court's determination that the Executive Order authorizing the assignment had expired. The appellate court holds that challenges to an assigned state attorney's authority must be brought through quo warranto proceedings, not by dismissing the underlying informations.
A challenge to an assigned state attorney's power and authority must be tested through direct proceedings by quo warranto, not by dismissing the informations themselves. Accordingly, the defendants' failure to pursue quo warranto proceedings was fatal to their attack on Shailer's authority.
[1] The authority of an assigned state attorney must be tested in a direct proceeding by quo warranto.
[2] Dismissal of informations is improper when the defendant fails to challenge the authority of the assigned prosecutor through a quo warranto proceeding.
Previewing 2 of 3 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“if the power and authority of an assigned state attorney is to be tested, it should be done in direct proceedings by quo warranto”
Establishes the proper procedural mechanism for challenging an assigned state attorney's authority, citing Hart v. State (1940)
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn May 28, 1975, the Governor issued Executive Order 75-27 assigning State Attorney Philip Shailer to prosecute certain individuals indicted by the Se…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
PER CURIAM.
The State of Florida appeals the orders dismissing four separate informations filed against the defendant-appellees by Philip S. Shailer, State Attorney of the 17th Judicial Circuit, on the ground that Executive Order 76-4 under which he was acting was invalid. On May 28, 1975 the Governor, pursuant to Section 27.14, Florida Statutes (1974), issued Executive Order (hereinafter E.O.) 75-27 assigning Philip Shailer, State Attorney of the 17th Judicial Circuit, to discharge the duties of the State Attorney of the 11th Judicial Circuit with respect to the prosecution of certain named individuals who had been indicted by the Second Statewide Grand Jury. Thereafter, by E.O. 75-36 of July 31, 1975, the Governor expanded E.O. 75-27 by providing Philip Shailer with the authority to investigate and prosecute all individuals indicted by the Second Statewide Grand Jury where venue lies in Dade County, Florida (the 11th Judicial Circuit). Subsequently, E.O. 75-27 as amended by E.O. 75-36 was extended until January 27, 1976 by the Governor on July 28, 1975 in E.O. 75-40.
On February 10,1976 the Governor issued E.O. 76-4, reissuing E.O 75-27 and all subsequent related Executive Orders (i. e. 75-36, 75-40, 75-56) and extending Philip Shailer’s assignment thereunder until August 9, 1976. On February 24 the Florida Supreme Court issued an “Order Approving Extended Assignment” of Shailer. Thereafter, on March 4, 1976 Shailer filed an amended information against defendant-ap-pellees Anthony Romano and Barry Mark for various gambling violations. Likewise, on March 22 a similar information was filed against defendant-appellees Michael Viscito and Joseph Covello. Also, on March 22 Shailer filed an information against defendant-appellees Joseph Ippolito and Michael Viscito for gambling violations. Upon various motion, these informations were dismissed as to the above defendants on the ground that since the first extension of E.O. 75-27 had expired on January 27, 1976, the issuance of E.O. 76-40 on February 10,1976 could not serve to revive it and, therefore, Shailer was without authority to file the above informations. The State appeals these dismissal orders and basically contends the authority of the assigned state attorney should have been tested by quo warranto proceedings. We agree.
Our Supreme Court in Hart v. State, 144 Fla. 409, 420, 198 So. 120, 125 (1940) held that “if the power and authority of an assigned state attorney is to be tested, it should be done in direct proceedings by quo warranto.” See also State, ex rel. Christian v. Austin, 302 So. 2d 811 (Fla. 1st DCA 1974). Defendants having failed to pursue this method in attacking the informations filed against them on the ground that Philip Shailer, the assigned attorney was without authority, the orders of dismissal appealed are reversed and the causes remanded to the trial court for further proceedings.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Winter v. State, 781 So. 2d 1111 (Fla. 1st DCA 2001)…to dismiss, was the proper procedure to test an information signed by an assistant state attorney for the 16th Circuit when the state attorney for the 11th Circuit had been specially sworn in the 16th Circuit to try certain cases); State v. Viscito, 349 So. 2d 196, 197 (Fla. 3d DCA 1977)(holding that quo warranto was the only way that the defendants could challenge the authority of a state attorney who was specially assigned to their judicial circuit when the defendants were alleging that the executive order…
-
Carey v. State, 349 So. 2d 820 (Fla. 3d DCA 1977)…ity of an assigned state attorney is tested, it should be done in direct proceedings by quo warranto, and not by appeal. Austin v. State ex rel. Christian, 310 So. 2d 289 (Fla.1975); Hart v. State, 144 Fla. 409, 198 So. 120 (1940); State v. Viscito, 349 So. 2d 196 (Fla.3d DCA 1977), opinion filed July 19, 1977. We see no reason, and none has been offered by counsel, why the above proceeding should not be utilized when challenging the power and authority of an assistant state attorney, who allegedly derives hi…
-
State of Fla. ex rel. Robert L. Shevin v. Weinstein, 353 So. 2d 1251 (Fla. 3d DCA 1978)…by quo warranto, not by direct appeal as contended by the respondents. Austin v. State ex rel. Christian, 310 So. 2d 289 (Fla.1975); Hart v. State, 144 Fla. 409, 198 So. 120 (1940); Carey v. State, 349 So. 2d 820 (Fla.3d DCA 1977); State v. Viscito, 349 So. 2d 196 (Fla.3d DCA 1977); Article V, Section 4(b)(3), Florida Constitution; Fla.App. Rule 4.5(e). Accordingly, the respondents’ motion to dismiss the petition herein for lack of jurisdiction is denied. The central issue raised by the petition and return i…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hart v. State, 144 Fla. 409 (Fla. 1940)
- State of Fla. ex rel. Floyd T. Christian v. The Honorable T. Edward Austin, 302 So. 2d 811 (Fla. 1st DCA 1974)