State ex rel. Dept. of Health and Rehabilitative Services v. Upchurch

• Decision Date: 04 March 1981
• Docket Number: No. 80-1186,80-1186
• Citation: 394 So.2d 577
• Parties: STATE of Florida ex rel. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and D. Jarrard, Petitioners, v. Honorable John J. UPCHURCH, Chief Judge of the Seventh Judicial Circuit Courtof Florida, Respondent.
• Court: Florida District Court of Appeals

Page 577

394 So.2d 577

STATE of Florida ex rel. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and D. Jarrard, Petitioners, v. Honorable John J. UPCHURCH, Chief Judge of the Seventh Judicial Circuit Courtof Florida, Respondent.

No. 80-1186.

District Court of Appeal of Florida, Fifth District.

March 4, 1981.

Chester G. Senf, Asst. Gen., Counsel, Dept. of Health & Rehabilitative Services, Tallahassee, for petitioners.

Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Daytona Beach, for respondent.

ORFINGER, Judge.

Petitioners have filed an original proceeding seeking a writ of prohibition directed to the respondent as the chief judge of the Seventh Judicial Circuit, seeking to set aside an order entered by the respondent, entitled "Order Establishing Additional Juvenile Detention Criteria" ¹ and made effective in the four counties within said circuit, Flagler, Putnam, St. Johns and Volusia. Petitioners attack said order as being without the jurisdiction of the chief judge because it is not an "administrative order" as defined in Rule 2.020, nor is it a local court rule within the scope of Rule 2.050 of the Florida Rules of Judicial Administration.

The Florida Legislature in 1980 amended section 39.032(2), Florida Statutes to read as follows:

Unless otherwise ordered by the court, a child taken into custody shall not be placed or detained in a secure facility prior to the disposition by the court unless:

(a) The child is from another jurisdiction and is an escapee from a commitment program or an absconder from probation, a community control program, or parole supervision for an offense which, if committed by an adult, would be a violation of law, or the child is wanted by another jurisdiction for an offense which, if committed by an adult would be a violation of law;

(b) The child requests protection in circumstances that appear to present an immediate threat to his personal safety;

(c) The child is charged with a capital felony, life felony, or felony of the first degree; with a crime of violence, that is, murder in the third degree, manslaughter, sexual battery, robbery, aggravated battery, or aggravated assault; or with two or more serious serious property crimes arising out of separate transactions;

(d) The child is charged with a serious property crime; that is, burglary as defined in § 810.02(2) and (3) or arson; or with the sale or manufacture of, or the trafficking in, a controlled substance; which if committed by an adult would be a felony; and

(1) He is already detained or has been released and is awaiting final disposition of his case;

(2) He has a record of failure to appear at court hearings;

(3) He has a record of violent conduct resulting in physical injury to others; or

(4) He has a record of adjudications for serious property offenses.

The order in question obviously expands the situations in which the intake officer "shall detain" juveniles in a secure facility. Petitioner contends that this order is unlawful, while respondent contends that as chief judge he has this power because of the opening portion of the amended statute which reads "unless otherwise ordered by the court ...."

The initial question presented by this petition is whether prohibition is a proper remedy in this instance. Prohibition is a preventive, rather than a corrective remedy; it acts only to prevent the commission of an act, and is not an appropriate remedy to revoke an order already issued. English v. McCrary, 348 So.2d 293 (Fla.1977); State ex rel. Harris v. McCauley, 297 So.2d 825 (Fla.1974); State ex rel. R. C. Motor Lines, Inc. v. Boyd, 114 So.2d 169 (Fla.1959); State ex rel. Jennings v. Frederick, 137 Fla. 773, 189 So. 1 (1939); State ex rel. Shailer v. Booher, 241 So.2d 720 (Fla. 4th DCA 1970).

This extraordinary writ issues only to prevent the commission of an act. It is not an appropriate remedy to revoke an order already issued. The very name of the writ suggests its proper use. It is used to prohibit the doing of something, rather than to compel the undoing of something already done.

114 So.2d 169, 170. Thus prohibition is not a proper remedy in this instance where the order has already been entered.

Although prohibition is an improper remedy, we have determined to treat the petition as a petition for certiorari, which we are authorized to do under Rule 9.040(c), Florida Rules of Appellate Procedure. See State ex rel. Wainwright v. Booth, 291 So.2d 74 (Fla. 2d DCA 1974). We consider then the question of whether the respondent departed from the essential requirement of law in promulgating the contested order.

This order does not arise out of any adversary proceeding, nor does respondent contend that this order was adopted as a "local rule." He does contend, however, that the order is consistent with the definition of an administrative order and further comes within the purview of his authority as chief judge to issue a plan "which shall include an administrative organization capable of effecting the prompt disposition of cases ..." Fla.R.Jud.Admin. 2.050(b)(3).

Rule 2.020(c), Florida Rules of Judicial Administration, defines an administrative order as "a directive necessary to administer properly the court's affairs, but not...