Opinion
No. 81-1022.
July 1, 1981.
Charles G. Brackins, Gainesville, for petitioners.
Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondent.
The respondent trial judge granted petitioners' motion to dismiss on the grounds that the statute under which the petitioners were being prosecuted was unconstitutional. See generally, State v. Benitez, 395 So.2d 514 (Fla. 1981). The state did not appeal. Subsequently, in Benitez, supra, the statute in question was found to be constitutional. The state then filed a motion before the respondent to reinstate the cause and the motion was granted. The petitioners now claim that upon dismissal the trial court lost jurisdiction and had no authority to reinstate the case. In response to an order to show cause the respondent has candidly conceded the validity of petitioners' assertion. The respondent has not cited and we are unaware of any authority by which the trial court, after dismissal, could reinstate the action against the petitioners because of the issuance of an appellate decision in another case. See generally State v. Morris, 359 So.2d 478 (Fla. 1st DCA 1978). Accordingly, the petition is granted and the respondent is directed to discharge the petitioners from further prosecution in Circuit Court Case No. 80-9398 CF A-B.
DOWNEY and MOORE, JJ., concur.