               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                                 IN THE DISTRICT COURT OF APPEAL

                                                 OF FLORIDA

                                                 SECOND DISTRICT


STATE OF FLORIDA,                                )
                                                 )
              Petitioner,                        )
                                                 )
v.                                               )   Case No. 2D16-2754
                                                 )
TIMOTHY SCOTT HAMILTON,                          )
                                                 )
              Respondent.                        )
                                                 )

Opinion filed February 22, 2017.

Petition for Writ of Certiorari to the Circuit
Court for the Tenth Judicial Circuit for Polk
County; sitting in its appellate capacity.

Pamela Jo Bondi, Attorney General,
Tallahassee, Elba Martin-Schomaker,
Assistant Attorney General, Tampa, and
Jerry Hill, State Attorney, and Victoria J.
Avalon, Assistant State Attorney, Bartow,
for Petitioner.

Ita M. Neymotin, Regional Counsel, and
Joseph Thye Sexton, Assistant Regional
Counsel, Bartow, for Respondent.



ROTHSTEIN-YOUAKIM, Judge.

              The State seeks second-tier certiorari review of the circuit court's order

granting Defendant Timothy Scott Hamilton's petition for writ of prohibition and ordering

the county court to dismiss the charge against Mr. Hamilton for refusing to submit to a
breath, blood, or urine test. The circuit court ruled that the county court should have

granted Mr. Hamilton's motion to dismiss because, under Florida Rule of Criminal

Procedure 3.151, the offense underlying the refusal charge was related to the offense

underlying a DUI charge of which he had been acquitted one day before the State had

filed the information on the refusal charge. We grant the State's petition and quash the

circuit court's order because the circuit court ignored well-established case law holding

that prohibition is available only to prevent a lower tribunal's unauthorized exercise of

jurisdiction.1

                                         Background

                 A Polk County Sheriff's deputy arrested Mr. Hamilton for driving under the

influence. At the Polk County jail, Mr. Hamilton twice refused to provide a breath

sample, the second time occurring after the deputy had read him the statutory implied-

consent warning. The State charged Mr. Hamilton with DUI (two prior convictions), see

§ 316.193(1)(a), (2)(b)(2), Fla. Stat. (2011), but a county court jury found Mr. Hamilton

not guilty. The following day, the State charged Mr. Hamilton with refusing to submit to

a breath test. See § 316.1939(1). Mr. Hamilton moved to dismiss the refusal charge

pursuant to rule 3.151(c), arguing that the offenses underlying the refusal charge and

the DUI charge were related2 and that the State's prosecution of the DUI demonstrated



                 1
                 The State also argues that even if prohibition were an available remedy,
certiorari relief would still be warranted because the refusal and DUI are not "related"
offenses under rule 3.151(a). Because we conclude that prohibition was not available,
we do not reach the merits of this alternative argument or of Mr. Hamilton's rule 3.151
motion.
                 2
                "For purposes of these rules, 2 or more offenses are related offenses if
they are triable in the same court and are based on the same act or transaction or on 2
or more connected acts or transactions." Fla. R. Crim. P. 3.151(a).
                                             -2-
that it would have been able, by due diligence, to obtain sufficient evidence to warrant

charging the refusal. The county court denied the motion.

              Mr. Hamilton petitioned for a writ of prohibition and requested the circuit

court to bar prosecution on the refusal charge either pursuant to rule 3.151, or,

alternatively, because it would constitute double jeopardy. The circuit court rejected Mr.

Hamilton's double-jeopardy argument but granted the petition based on its conclusion

that the DUI and the refusal were related offenses under rule 3.151(a). The circuit

court, however, did not address the threshold question of whether prohibition was

available to preclude prosecution under rule 3.151(c).

                                         Discussion

              A second-tier petition for writ of certiorari is the appropriate vehicle to

review a circuit court's order on a petition for writ of prohibition. See Sutton v. State,

975 So. 2d 1073, 1080-81 (Fla. 2008). This court's review is limited to whether the

circuit court afforded the petitioner procedural due process and whether it departed from

the essential requirements of law. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.

3d 1086, 1092 (Fla. 2010). Such a departure must be more than simple legal error,

because second-tier certiorari relief is available only "when the lower tribunal has

violated a clearly established principle of law resulting in a miscarriage of justice." Id.

This "clearly established law" can include constitutional law, statutes, rules of court, and

recent controlling case law that deals "with the same issue of law, an interpretation or

application of a statute, a procedural rule, or a constitutional provision." Allstate Ins. Co.

v. Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003).




                                             -3-
              The writ of prohibition is an extraordinary remedy that "may only be

granted when it is shown that a lower court is without jurisdiction or attempting to act in

excess of jurisdiction." English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977); see also

Taylor v. State, 65 So. 3d 531, 533 (Fla. 1st DCA 2011) ("Prohibition is an extraordinary

remedy that [is] used to restrain the unlawful use of judicial power."). The writ is

available, for example, to prevent prosecutions that the trial court lacks jurisdiction to

entertain based on double jeopardy or speedy trial considerations. See, e.g., Sherrod v.

Franza, 427 So. 2d 161, 163 (Fla. 1983) ("Prohibition is an appropriate remedy to

prohibit trial court proceedings where an accused has been denied his right to a speedy

trial and his motion for discharge has been denied. A court does not have jurisdiction to

try a defendant when he is entitled to discharge on the ground of double jeopardy or

collateral estoppel, or if he is entitled to a discharge because of a violation of his

immunity from prosecution or his right to a speedy trial." (internal citation omitted));

Moody v. State, 931 So. 2d 177 (Fla. 2d DCA 2006) (granting writ to prevent retrial on

charges on which defendant already had been acquitted because retrial would violate

Double Jeopardy Clause); State ex rel. Wilhoit v. Wells, 356 So. 2d 817, 821-22, 825

(Fla. 1st DCA 1978) (granting writ to prevent trial on charges to which defendant had

already pled nolo contendere because trial would violate double jeopardy clause).

              In this case, however, after rejecting the merits of Mr. Hamilton's double-

jeopardy argument, the circuit court addressed the merits of his rule 3.151 argument

without first considering whether rule 3.151 implicates the county court's jurisdiction to

entertain his prosecution on the refusal charge. And, in short, it does not. See Von

Deck v. Evander, 622 So. 2d 1160, 1162 (Fla. 5th DCA 1993) ("Rule 3.151(c) provides



                                             -4-
for dismissal of related offenses not consolidated for trial; however, this procedural rule

does not invoke double jeopardy concerns. . . . An allegedly erroneous denial of a rule

3.151(c) motion to dismiss does not affect the trial court's subject matter jurisdiction as

does the erroneous denial of a motion to dismiss based on double jeopardy grounds.");

see also State v. Mateen, 678 So. 2d 449, 451 (Fla. 2d DCA 1996) ("Unlike the

Blockburger[ v. United States, 284 U.S. 299 (1932)] test, rule 3.151(b) defines related

offenses as those that may be tried in the same court and those that are based on the

same act or transaction or two or more connected acts or transactions. This rule is

separate and distinct from the doctrine of double jeopardy." (internal citation omitted)).

In failing to address the threshold question of whether the extraordinary remedy of

prohibition was even available, the circuit court violated a clearly established principle of

law. See Custer, 62 So. 3d at 1092-93.

              Furthermore, this violation resulted in a miscarriage of justice. See id.

First, the erroneous grant of prohibition impermissibly infringed on the county court's

lawful exercise of its jurisdiction, as defined by statute pursuant to article V, section 6(b),

of the Florida Constitution. See § 34.01(1)(a), Fla. Stat. (2013) (vesting county courts

with original jurisdiction over "all misdemeanor cases not cognizable by the circuit

courts"). Moreover, it wholly negated the State's ability to proceed with its prosecution

and left the State with no other avenue for review. Cf. State v. Roess, 451 So. 2d 879,

880 (Fla. 2d DCA 1984) (denying state's petition for second-tier certiorari review of

circuit court's order reversing criminal defendant's conviction and ordering a new trial

because "respondent has not been exonerated of criminal wrongdoing" and "state has

not been deprived of its day in court").



                                             -5-
                                         Conclusion

              Based on the foregoing, we grant the State's petition for writ of certiorari

and quash the circuit court's order granting Mr. Hamilton's petition for writ of prohibition.

              Petition granted; order quashed.



NORTHCUTT and LUCAS, JJ., Concur.




                                            -6-
