Figone v. Downey, 89-01635

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Citation547 So.2d 697,14 Fla. L. Weekly 1863
Parties14 Fla. L. Weekly 1863 James FIGONE, Petitioner, v. Honorable Brandt C. DOWNEY, III, Circuit Judge, Sixth Judicial Circuit, Respondent.
Docket NumberNo. 89-01635,89-01635
Decision Date02 August 1989

Page 697

547 So.2d 697
14 Fla. L. Weekly 1863
James FIGONE, Petitioner,
Honorable Brandt C. DOWNEY, III, Circuit Judge, Sixth Judicial Circuit, Respondent.
No. 89-01635.
District Court of Appeal of Florida,
Second District.
Aug. 2, 1989.

Page 698

James Figone, pro se.

John A. Majestic, New Port Richey, for petitioner.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol M. Dittmar, Asst. Atty. Gen., Tampa, for respondent.


James Figone petitions this court for a writ of prohibition to bar further proceedings by the circuit court of the Sixth Judicial Circuit in and for Pasco County, where Figone is charged with violation of community control. 1 We grant the petition.

On September 2, 1988, Figone was sentenced to thirty months in prison for defrauding an insurance company. 2 Figone filed a timely notice of appeal and that case remains pending. Figone v. State, No. 88-2812. On December 27, 1988, this court received a voluntary dismissal which, pursuant to our requirement in criminal cases, was signed by both Figone's attorney and Figone personally. However, before the court could act on the dismissal we received a second, somewhat unusual pro se document captioned "involuntary dismissal and motion to reinstate," which claimed that the prior voluntary dismissal "was not voluntary at all." When counsel failed to respond to this motion despite having been requested to do so, 3 we directed that the appeal would proceed. Nothing further was received until June 9, 1989, when Figone, again acting pro se, filed an "emergency motion" which we deemed should be treated as a petition for writ of prohibition.

The "emergency" petition relies upon the following undisputed facts. After filing the appeal in case number 88-2812, Figone apparently persuaded the trial court to vacate his prison sentence and place him on community control. It further appears that Figone, in exchange for mitigation of the sentence, agreed to dismiss the appeal. 4 This proceeding took place November 9, 1988, well over a month before the written voluntary dismissal was submitted to this court. In the meantime Figone was arrested on new felony charges, which remain pending as of this writing and which are also being invoked to violate his community control. Faced with the prospect of a return to state prison

Page 699

notwithstanding the outcome of the new charges, Figone argues that the trial court acted without jurisdiction when it placed him on community control and continues to lack jurisdiction over the...

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2 cases
  • Nelson v. State, No. 97-04456
    • United States
    • Court of Appeal of Florida (US)
    • 20 de novembro de 1998
    ...this elementary misunderstanding of jurisdictional principles. See Holmes v. State, 711 So.2d 565 (Fla. 2d DCA 1997); Figone v. Downey, 547 So.2d 697 (Fla. 2d DCA At the same time, the State and the trial court ignored an equally fundamental precept of our constitutional law which inheres i......
  • Key v. State, 92-01168
    • United States
    • Court of Appeal of Florida (US)
    • 13 de maio de 1992
    ...of direct appeal was filed in April 1988. If that is true, the trial court lacked jurisdiction to resentence Key. See Figone v. Downey, 547 So.2d 697 (Fla. 2d DCA 1989). The trial court's order, in addressing this issue, states that Key's notice of appeal was filed in May 1988. However, the......

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