CALVIN W. LEWIS v. STATE OF FLORIDA

251 So. 3d 310

• Court: District Court of Appeal of Florida
• Decided: July 13, 2018
• Docket: 18-1126
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

CALVIN LEWIS, ) ) Petitioner, ) ) v. ) Case No. 2D18-1126 ) STATE OF FLORIDA, ) ) Respondent. ) ___________________________________)

Opinion filed July 13, 2018.

Petition for Writ of Prohibition to the Circuit Court for Hillsborough County; Christopher C. Sabella, Judge.

Julianne M. Holt, Public Defender, Tampa, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent.

BLACK, Judge.

Calvin Lewis petitioned this court for a writ of prohibition to prevent his

further prosecution for first-degree murder following the trial court's denial of his motion

to dismiss based upon Stand Your Ground immunity under section 776.032(1), Florida

Statutes (2017). We deny the petition without further discussion. Accordingly, the stay imposed by this court's order issued on March 23, 2018, is hereby lifted. We write to

call attention to a procedural concern that is well illustrated by the facts of this case.

Lewis filed his motion to dismiss in the trial court on August 31, 2017. The

court held an evidentiary hearing on the motion on November 3 and November 9,

2017. The court rendered its order denying the motion to dismiss on December 18,

2017. The jury trial in Lewis's first-degree murder case was then scheduled to begin on

March 26, 2018. Thereafter, on February 1, 2018, Lewis filed a motion for clarification

of the court's order, specifically requesting that the trial court make additional findings of

fact and state which facts and testimony it relied upon in reaching its conclusion. The

trial court rendered an order denying the motion for clarification on February 13,

2018. Lewis did not file his petition for writ of prohibition until Thursday, March 22,

2018, four days before his trial was scheduled to begin.

The complexity of the issues raised in the petition were not amenable to

resolution without obtaining a response from the State and could not be resolved before

the March 26 trial date. As a result, we issued an order to show cause on March 23,

2018, thereby staying the underlying proceedings.

Lewis could have filed his petition in this court as soon as the trial court

denied his motion in December 2017. Alternatively, Lewis could have filed his petition

immediately upon receipt of the order denying his motion for clarification. Instead he

waited well over a month until the eve of a jury trial in a first-degree murder case to file

the petition. Moreover, there is no requirement that the trial court make express

findings of fact in an order denying a motion to dismiss pursuant to section 776.032.

Substantive law provides that the denial of Stand Your Ground motions to

-2- dismiss be challenged by prohibition. Little v. State, 111 So. 3d 214, 216, 216 n.1 (Fla.

2d DCA 2013). But there is no jurisdictional timeframe for the filing of a petition for writ

of prohibition. Compare Fla. R. App. P. 9.100(c), with Fla. R. App. P. 9.100(e). Here,

the absence of a procedural process or, at a minimum, a jurisdictional timeframe for

filing the petition for writ of prohibition resulted in the delay—at the last moment—of a

first-degree murder trial. The last minute trial cancellation undoubtedly caused a

significant hardship on the parties, witnesses, and the trial court. The fact that neither

the Florida Rules of Criminal Procedure nor the Florida Rules of Appellate Procedure

address the timing of Stand Your Ground motions to dismiss or petitions for writ of

prohibition means that there is the potential for abuse by virtue of a defendant seeking

what amounts to a last minute continuance.

We encourage the Florida Bar Criminal Rules Committee and the Florida

Bar Appellate Rules Committee to consider the need for rules addressing this issue. It

would seem to be preferable for there to be a set time period for challenging these types

of orders so that a trial court could refrain from setting trial until such time as the court

knows that its ruling will not be subject to interlocutory review. We further note that in

this case nothing in Lewis's initial filings in this court reflected the fact that a trial was

scheduled to begin within days. It would be prudent for petitioners in this court to notify

us that a trial or hearing in the lower court is imminent and that the matter filed in this

court should be resolved before those proceeding go forward.

Petition denied.

LaROSE, C.J., and BADALAMENTI, JJ., Concur.

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