Steven Bembridge v. The State of Florida

• Court: District Court of Appeal of Florida
• Decided: June 5, 2024
• Docket: 2023-2050
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed June 5, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-2050 Lower Tribunal No. 21-303-A-K ________________

Steven Bembridge, Petitioner,

vs.

The State of Florida, Respondent.

A Case of Original Jurisdiction – Prohibition.

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.