State Ex Rel. Kelley v. Rawlins

289 So.2d 444 (1974) STATE of Florida ex rel. Timothy S. KELLEY, Relator, v. The Honorable Robert RAWLINS, Respondent. No. 73-855. District Court of Appeal of Florida, Second District. February 6, 1974. Law offices of H. Lee Moffitt, Tampa, for relator. Robert Lee Dennis, Asst. State Atty., Tampa, for respondent. PER CURIAM. Relator, a minor of 15 years of age, was arrested on April 7, 1973, at a convenience store for armed robbery of that store on March 20, 1973. On April 13, 1973, a Complaint was filed with an Intake Officer with the Division of Youth Services of Hillsborough County, Florida, alleging the Relator to be delinquent by alleging that he committed the aforesaid offense. On April 23, 1973, Relator was arrested at his home for armed robbery of two convenience stores on April 19, 1973. On May 2, 1973, a two-count Complaint was filed with an Intake Officer with the Division of Youth Services of Hillsborough County, Florida alleging the Relator to be delinquent by alleging that he committed the two aforesaid offenses. On May 24, 1973, the State Attorney of Hillsborough County, Florida, filed a three-count Petition in the Juvenile and Domestic Relations Division of the Circuit Court, Thirteenth Judicial Circuit in and for Hillsborough County, Florida, requesting that that Court take jurisdiction of Relator and adjudicate him to be a delinquent child for committing the aforesaid offenses. On August 10, 1973, upon Motion for Discharge filed by defense counsel, that Court entered its Order dismissing Petition *445 with prejudice and further directed that the case be closed because Rule 3.191, Florida Rules of Criminal Procedure, had been violated. No appeal from that Order dismissing Petition was taken by the State of Florida. On October 10, 1973, 170 days after Relator was arrested for armed robbery the second time (April 23, 1973), the State Attorney of Hillsborough County, Florida, obtained two (2) grand jury indictments charging Relator with the crimes of April 19, 1973, as had been previously charged in the Petition filed May 24, 1973, and dismissed on August 10, 1973. On October 11, 1973, at 5:00 P.M., Relator was again arrested at his home for the April 19, 1973 offenses. On Friday, October 12, 1973, at 9:00 A.M. Relator was arraigned on both indictments and entered a plea of not guilty to both indictments. Trial was scheduled on the first indictment for the following Tuesday, October 16, 1973, and on the second indictment for the following day, Wednesday, October 17, 1973. Both cases were scheduled to be heard before the Honorable Robert Rawlins, Circuit Judge, Hillsborough County, Florida. At arraignment, Relator made a Motion to Dismiss and Quash the indictments, which motion the Court denied. This proceeding followed. We had initially thought that prohibition ought be denied on the authority of State v. R.E.F.[1] However, since that determination R.E.F., supra, was taken to the federal courts and the Fifth Circuit Court of Appeals granted habeas corpus therein and quashed the Florida decisions. Accordingly, prohibition is hereby granted on the authority of Fain v. Duff (U.S. 5th Cir.1973), 488 F.2d 218, decided December 7, 1973. In view whereof, the rule heretofore issued herein should be, and it is hereby, made absolute. Prohibition granted. MANN, C.J., and McNULTY and BOARDMAN, JJ., concur. NOTES [1] (Fla.App. 1st, 1971), 251 So.2d 672, aff'd (Fla. 1972), 265 So.2d 701.