Writ of Prohibition
The writ of prohibition is an extraordinary remedy that “may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction.” English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977).
In Taylor v. State, 65 So. 3d 531, 533 (Fla. 1st DCA 2011), the court found that “[p]rohibition is an extraordinary remedy that [is] used to restrain the unlawful use of judicial power.”).
The writ of prohibition is available to prevent prosecutions that the trial court lacks jurisdiction to entertain based on double jeopardy or speedy trial considerations.
For example, in Sherrod v. Franza, 427 So. 2d 161, 163 (Fla. 1983), the Florida Supreme court found that:
“[p]rohibition is an appropriate remedy to prohibit trial court proceedings where an accused has been denied his right to a speedy trial and his motion for discharge has been denied. A court does not have jurisdiction to try a defendant when he is entitled to discharge on the ground of double jeopardy or collateral estoppel, or if he is entitled to a discharge because of a violation of his immunity from prosecution or his right to a speedy trial.”
Id. (internal citation omitted).
In Moody v. State, 931 So. 2d 177 (Fla. 2d DCA 2006), the court granted writ of prohibition to prevent retrial on charges on which defendant already had been acquitted because retrial would violate Double Jeopardy Clause.
In State ex rel. Wilhoit v. Wells, 356 So. 2d 817, 821-22, 825 (Fla. 1st DCA 1978), the court granted writ of prohibition to prevent trial on charges to which defendant had already pled nolo contendere because trial would violate double jeopardy clause.
Attorney for Writ of Prohibition in Tampa, FL
Contact an experienced criminal appellate attorney in Tampa, FL, at Sammis Law Firm to discuss filing a writ of prohibition in your case. When it comes to filing an appeal, post-conviction motion, or writ of prohibition, we can help you at each stage.
The criminal appellate attorneys in Tampa, FL, at Sammis Law Firm, represent clients throughout Tampa and Hillsborough County, FL. We also represent clients in the surrounding areas including Bradenton in Hernando County, New Port Richey and Dade City in Pasco County, St. Peterburg and Clearwater in Pinellas County, Bradenton in Manatee County, and Bartow and Winter Haven in Polk County, FL.
When the Lower Court Erroneously Grants a Writ of Prohibition
What happens when the lower court erroneously grants a writ of prohibition which results in a miscarriage of justice?
The erroneous grant of prohibition impermissibly infringed on the county court’s lawful exercise of its jurisdiction pursuant to article V, section 6(b), of the Florida Constitution.
Under § 34.01(1)(a), Fla. Stat., the county court is vested with original jurisdiction over “all misdemeanor cases not cognizable by the circuit courts.” In those circumstances, the erroneous granting of a writ of prohibition by a lower court would completely negate the State’s ability to proceed with its prosecution and leave the State with no other avenue for review.
For example, in State v. Roess, 451 So. 2d 879, 880 (Fla. 2d DCA 1984), the appellate court reversed a lower court that denied the state’s petition for a second-tier certiorari review and lower court’s order reversing the criminal defendant’s conviction and ordering a new trial because “respondent has not been exonerated of criminal wrongdoing” and “state has not been deprived of its day in court.”
This article was last updated on Friday, April 2, 2021.