Bembridge v. State

Full title: Steven Bembridge, Petitioner, v. The State of Florida, Respondent.

Court: Florida Court of Appeals, Third District

Date published: Jun 5, 2024

No. 3D23-2050 (Fla. Dist. Ct. App. Jun. 5, 2024)

Opinion

3D23-2050

06-05-2024

Steven Bembridge, Petitioner, v. The State of Florida, Respondent.

Michael Hursey, P.A., and Michael Hursey (Fort Lauderdale), for petitioner. Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for respondent.

PER CURIAM.

Not final until disposition of timely filed motion for rehearing.

A Case of Original Jurisdiction - Prohibition. Lower Tribunal No. 21-303-A-K

Michael Hursey, P.A., and Michael Hursey (Fort Lauderdale), for petitioner.

Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for respondent.

Before LINDSEY, GORDO and LOBREE, JJ.

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.