Toomey v. State

Florida Circuit Courts

Toomey v. State

42 Fla. Supp. 2d 47

CourtCircuit Court for the Judicial Circuits of Florida

DecidedMarch 15, 1990

DocketCase No. 89-69AC10 (Lower Case No. 89-17653 MM10)

StatusPublished

This text of 42 Fla. Supp. 2d 47 (Toomey v. State) is published on Counsel Stack Legal Research, covering Circuit Court for the Judicial Circuits of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Toomey v. State, 42 Fla. Supp. 2d 47 (Fla. Super. Ct. 1990).

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Opinion

OPINION OF THE COURT

RICHARD D. EADE, Circuit Judge.

Appellant, GREGG ALAN TOOMEY, filed an appeal from an Order of the County Court which denied his Petition To Show Cause Why His Drivers License Should Not Be Suspended.

This Court has jurisdiction, pursuant to Fla.R.App.P. 9.030(a)(1)(A) because the Order appealed from is a final Order of the County Court, [48]*48not a final Order from an administrative agency which would require certiorari jurisdiction. State Department of Highway Safety and Motor Vehicles v Bell, 505 So.2d 472 (Fla. 2d DCA 1987)

In the alternative, even if this is not a final Order, since the Appellant filed a timely notice of appeal, this Court in the exercise of its discretion has inherent power to hear the appeal if it finds to do so would result in the orderly and expeditious administration of justice. This Court so find and thus accepts jurisdiction of this appeal, (see also) Fla.R.App.P. 9.040(c)

As to the merits of the case, this Court finds that the record below establishes that the affidavit submitted to the Department of Highway Safety and Motor Vehicles by the trooper was an unsworn affidavit. That since the affidavit was not sworn, and since the requirement of a sworn affidavit is found not only in F.S.A. 322.261(1) but in Fla. Admin. Code Rule 15-B 3.007., the Department has no jurisdiction to suspend the Appellant’s drivers license. State v Johnson, 14 FLW 2519 (Fla. 2d DCA 1989).

That based on the above opinion of this Court, the Order of the County Court denying the Appellant’s Petition to Show Cause why his drivers license should not be suspended is reversed.

The Appellant’s Petition To Show Cause Why His Drivers License Should Not Be Suspended is hereby granted.

DONE AND ORDERED in Chambers at Fort Lauderdale, Bro-ward County, Florida this 15 th day of March, 1990.

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OPINION OF THE COURT

RICHARD D. EADE, Circuit Judge.

Appellant, GREGG ALAN TOOMEY, filed an appeal from an Order of the County Court which denied his Petition To Show Cause Why His Drivers License Should Not Be Suspended.

This Court has jurisdiction, pursuant to Fla.R.App.P. 9.030(a)(1)(A) because the Order appealed from is a final Order of the County Court, [48]*48not a final Order from an administrative agency which would require certiorari jurisdiction. State Department of Highway Safety and Motor Vehicles v Bell, 505 So.2d 472 (Fla. 2d DCA 1987)

In the alternative, even if this is not a final Order, since the Appellant filed a timely notice of appeal, this Court in the exercise of its discretion has inherent power to hear the appeal if it finds to do so would result in the orderly and expeditious administration of justice. This Court so find and thus accepts jurisdiction of this appeal, (see also) Fla.R.App.P. 9.040(c)

As to the merits of the case, this Court finds that the record below establishes that the affidavit submitted to the Department of Highway Safety and Motor Vehicles by the trooper was an unsworn affidavit. That since the affidavit was not sworn, and since the requirement of a sworn affidavit is found not only in F.S.A. 322.261(1) but in Fla. Admin. Code Rule 15-B 3.007., the Department has no jurisdiction to suspend the Appellant’s drivers license. State v Johnson, 14 FLW 2519 (Fla. 2d DCA 1989).

That based on the above opinion of this Court, the Order of the County Court denying the Appellant’s Petition to Show Cause why his drivers license should not be suspended is reversed.

The Appellant’s Petition To Show Cause Why His Drivers License Should Not Be Suspended is hereby granted.

DONE AND ORDERED in Chambers at Fort Lauderdale, Bro-ward County, Florida this 15 th day of March, 1990.

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Bluebook (online)

42 Fla. Supp. 2d 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toomey-v-state-flacirct-1990.

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