State ex rel. Shailer v. Booher, 70-789

• Decision Date: 11 December 1970
• Docket Number: No. 70-789,70-789
• Citation: 241 So.2d 720
• Parties: STATE of Florida ex rel. Philip S. SHAILER, State Attorney of the Seventeenth Judicial Circuit in and for Broward County, Florida, Relator, v. Hon. Stephen R. BOOHER, Judge of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 720

241 So.2d 720

STATE of Florida ex rel. Philip S. SHAILER, State Attorney of the Seventeenth Judicial Circuit in and for Broward County, Florida, Relator, v. Hon. Stephen R. BOOHER, Judge of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Respondent.

No. 70-789.

District Court of Appeal of Florida, Fourth District.

Dec. 11, 1970.

Philip S. Shailer, State Atty., Fort Lauderdale, for relator.

Rex Conrad, of Fleming, O'Bryan & Fleming, Fort Lauderdale, for respondent.

H. T. Maloney, of Patterson, Maloney & Frazier, Fort Lauderdale, amicus curiae.

REED, Judge.

This case involves an original application for a writ of prohibition filed in this court pursuant to Rule 4.5, FAR, 32 F.S.A. The petitioner is Philip S. Shailer, the State Attorney for the Florida Seventeenth Judicial Circuit. The respondent is Stephen R. Booher, a judge of the Circuit Court for the Seventeenth Judicial Circuit. On the basis of the preliminary showing made by the petition, this court issued a Rule Nisi directed to the respondent on 23 September 1970. A return to the Rule Nisi has been filed along with briefs.

It appears that the petitioner in his capacity as the State's Attorney for the Seventeenth Judicial Circuit filed an information in the Broward County Court of Record on 11 September 1970 charging one Russell Leroy Iler with second degree murder. Thereafter, Mr. Iler was arrested and confined in the Broward County jail. Mr. Iler made a motion for a preliminary hearing in the court of record, but the motion was denied.

Following the denial of the motion for a preliminary hearing, Mr. Iler filed a petition for habeas corpus in the Broward County Circuit Court before Judge Stephen R. Booher who is now the respondent in this cause. The petition for habeas corpus alleged that Mr. Iler had been denied a right to a preliminary hearing. Following the hearing on the petition for habeas corpus, Judge Booher entered a peremptory writ directing the sheriff of Broward County, Florida, to bring Mr. Iler before a committing magistrate on 23 September 1970 on or before 2:30 p.m. for a preliminary hearing or in the alternative to release Mr. Iler from custody. No appeal was taken from the peremptory writ. Instead, the state's attorney filed in this court the petition for a writ of prohibition now before us. In the petition he requests that this court issue a writ directed to the respondent prohibiting him from executing and enforcing the peremptory writ which the respondent had theretofore entered in the habeas corpus proceeding.

At the outset we question whether or not the writ of prohibition which is sought from this court is appropriate for the relief requested. Even if we prohibited the circuit judge from enforcing the peremptory order directed to the sheriff, it is entirely possible that the sheriff who remains subject to the order might still comply with it. The jurisdiction which this court actually needs in connection with this cause is the jurisdiction to correct or modify the trial court's order, and that jurisdiction would have been conferred on us by a proper appeal. State ex rel. Gibbs v. Hobson, 1938, 135 Fla. 335, 185 So. 147; State ex rel. B. F. Goodrich Co. v. Trammel, 1939, 140 Fla. 500, 192 So. 175. A writ of prohibition is not appropriate to modify or correct an order which has already been entered. Its proper use is to prohibit the doing of something that has not been done rather than to compel the undoing of something already done. State ex rel. R. C. Motor Lines, Inc. v. Boyd, Fla.1959, 114 So.2d 169.

The petitioner suggests that we have jurisdiction to grant complete relief under the decisional law announced in State ex rel. Perky v. Browne, 1932, 105 Fla. 631, 142 So. 247. In that case the Supreme Court by way of dictum stated that it had the power by writ of prohibition to prohibit the wrongful discharge of a person by one court when such discharge would be in derogation of the processes of another court under whose lawful order the person is held. We do not believe that this dictum would sustain our intrusion into the habeas corpus proceeding in the circuit court. We cannot conclude that the peremptory writ in the habeas corpus proceeding Was in derogation of the order issued by the Broward County Court of Record under which Mr. Iler was arrested. The order or capias for Mr. Iler's arrest contemplated a lawful treatment of Iler once arrested, and such treatment includes affording him the right to a preliminary hearing which the circuit judge sought to secure for him.

We conclude that the rule nisi was improvidently issued by this court and that the writ of prohibition should be denied. We do not know when the stay imposed by our rule nisi became effective--whether before or after the time set by the peremptory writ for the preliminary hearing. See Rule 4.5(d)(2), FAR. We, therefore, do not know whether our denial of the writ sought in this case will lead to the release of Mr. Iler...