County Criminal Court: CRIMINAL PROCEDUREóJurisdiction:the county court had jurisdiction of the subject matter [misdemeanor violation of probation] under statute-the defendant's objections go to the sufficiency of the affidavit and the summons-thus, it is an error in the exercise of a jurisdiction granted and not an illegal claim of jurisdiction-such errors must be corrected by the ordinary methods provided for review.Petition for Writ of Prohibition Denied. Houck v. State of Florida, No: 51-2004-CA-02812, (Fla. 6th Cir. App. Ct. Jan. 18, 2005).

 

 

 

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

TINA MARIE HOUCK

 

v. ††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† CASE NO: 51-2004-CA-02812

 

STATE OF FLORIDA ,††

††††††††††††††††††††††† Appellant,††††††††††††††††††††††††††††††††††††††††††††

___________________________/

 

 

 

††††††††††† ORDER DENYING PETITION FOR WRIT OF PROHIBITION

††††††††††† THIS CAUSE came before the Court on the Petition for Writ of Prohibition, the Response to the Petition and the Reply to the Response.Upon consideration of the same, the record, and being otherwise fully advised, the Court finds that the Petition for Writ of Prohibition is not properly before this Court and is, therefore, denied.

††††††††††† On January 28, 2004, Petitioner was sentenced to six months probation. Petitioner's six month term ended July 28, 2004. An affidavit of violation of probation was filed and on July 13, 2004, the judge signed the affidavit and forwarded it to the clerk's office.The clerk's office issued a notice to appear to the defendant on July 13, 2004.No arrest warrant was ever issued. On September 10, defense counsel filed a Motion to Dismiss.On September 16, the state filed a traverse in which they admitted to all of the facts in defendant's motion to dismiss.However, the state argued that since this is not a felony case, there need not be a warrant and a summons would suffice under Florida Statute section 901.09.On September 29, 2004, at the final hearing, defense counsel requested the court dismiss the case for lack of jurisdiction.The case was set for argument October 7, 2004, at which time the court denied the defendant's motion.

††††††††††† After careful review, this Court agrees with the analysis of the 15th Judicial Circuit in Vanlopik v. State, 99-73 AC AO2 (15th Jud. Cir. 1999 ), in which the court†† denied a petition for writ of prohibition in which petitioner sought to prevent the lower court from conducting a 'final hearing of violation of probation' for lack of jurisdiction. In Vanlopik, petitioner filed a petition for writ of prohibition in which he claimed that his motion to dismiss should have been granted because the warrant for the violation of probation was not properly issued or delivered before the one year probationary period had expired. Specifically, he alleged that the affidavit of violation of probation and notice to appear did not constitute a valid commencement of the revocation process.The court declined to address that issue finding that a petition for writ of prohibition should not lie to correct the lower court's denial of petitioner's motion to dismiss for lack of jurisdiction. The court reasoned that a petition for writ of prohibition under these facts should be denied because the grounds upon which the writ is based relate to errors in the exercise of a jurisdiction conferred by law.See also English v. McCrary, 348 So.2d 293, 296 (Fla.1977) (holding remedy of prohibition is only available when the trial court is without jurisdiction or is acting in excess of its jurisdiction).That is, the county court had jurisdiction of the subject matter [misdemeanor violation of probation] under statute. The objections go to the sufficiency of the affidavit and the summons. Thus, it is an error in the exercise of a jurisdiction granted and not an illegal claim of jurisdiction.Such errors must be corrected by the ordinary methods provided for review. Similarly, in this case, petitioner is objecting to the sufficiency of the summons, and it may therefore be an error in the exercise of a jurisdiction granted, however, it is not an illegal claim of jurisdiction. As cautioned by the court in Mandico v. Taos Construction, Inc., 605 So.2d 850 (Fla.1992), the writ is very narrow in scope. However, the scope of the writ is wide enough to encompass a case where the court oversteps its authority.A.D.W. v. State,   777 So.2d 1101, 1103 (Fla. 2d DCA2001).Here, it can not be said that the trial court overstepped its authority.

 

IT IS THEREFORE ORDERED that the judgment is affirmed.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of January, 2005.

††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††††††††††††††††††††††††††† ________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† W. Lowell Bray, Circuit Judge

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Primary Appellate Judge

 

†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ____________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Daniel D. Diskey

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Stanley R. Mills

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

Copies furnished to:

Office of the State Attorney

Office of the Public Defender