Defending Restraining Order Violations With A Writ Of Prohibition Florida County Courts May Not Hav

A writ of prohibition is an order from a superior court directing an inferior court

to cease conducting proceedings in a matter where the inferior court is about to exceeded it's the limits of it's subject matter jurisdiction. "Prohibition lies where a trial court is about to act in excess of its subject matter jurisdiction." Markin v. Markin, 877 So.2d 785 (Fla. 4th DCA 2004) citing Markham v. Moriarty, 575 So.2d 1307 (Fla. 4th DCA) cert. Denied, sub. nom., 502 U.S. 968, 112 S.Ct. 440 (1991). "Prohibition will not lie to compel the undoing of something already done, such as an order already entered." Id. citing Bender v. First Fid. Sav. & Loan Ass'n of Winter Park, 463 So.2d 445 (Fla. 4th DCA 1985), approved, 491 So.2d 276 (Fla. 1986).Unlike a writ of certerori, the issues that could be raised in a writ of prohibition become moot when the inferior court enters its final order. Post judgment, jurisdiction can be collaterally attacked on appeal, but not through a writ of prohibition.

Florida Statute 26.012(a) grants the Circuit Court exclusive jurisdiction in civil proceedings related to domestic violence and repeat violence injunctions. Florida has two trial courts. The Circuit Court is a court of general jurisdiction while the County Court is a court of limited jurisdiction. The jurisdictional limitations of the County Courts is set forth in Florida Statute 34.01 which includes subject matter jurisdiction to hear misdemeanor cases.

An individual charged for violating a court's order may defend by showing that the order was void. See Friedman v. Friedman, 224 So.2d 424 (Fla. 3rd DCA 1969). If the Circuit Court's order void, it is of no force and effect and a void order is an absolute affirmative defense to a criminal violation of a restraining order.

The starting point for filing a writ of prohibition is in the Circuit Court transcript of the injunction hearing. Absent cross petitions for an injunction, the Circuit Court is limited to granting the relief sought in the single petition. When the court is making it's oral ruling, one should look for orders that are prohibited by law. A frequently heard order is often similar to "The injunction is granted. Both of you stay away from each other." The oral ruling of the court purports to grant an injunction to both parties which is illegal.

After the oral order is pronounced, the clerk prepares the written order which grant's relief only to the petitioning party. Under Florida Law, the oral order prevails over the written order. A written order of a trial court is void to the extent that it is inconsistent with the trial court's oral pronouncement. See Ulano v. Anderson, 626 So.2d 1112 (Fla. 3rd DCA 1993) citing Leonard v. Leonard, 613 So.2d 1339, 1340 (Fla. 3rd DCA 1993); Gallardo v. Gallardo, 593 So.2d 522, 524 (Fla. 3rd DCA 1991), rev. denied 604 So.2d 486 (Fla. 1992); Ivens Corp v. Cohen, 560 So.2d 1352, 1353 (Fla. 3rd DCA 1990); Mahaffey v. Mahaffey, 614 So.2d 649 (Fla. 2nd DCA 1993); Howard v. State, 591 So.2d 1067, 1068 (Fla. 4th DCA 1991); Powell v. Allstate Ins. Co., 479 So.2d 149, 150 (Fla. 4th DCA 1985), rev. denied, 491 So.2d 278 (Fla. 1986).

By raising the affirmative defense of "void order", the County Court is forced to determine the validity of a Circuit Court order. Placing the County Court in an appellate capacity regarding the validity of a Circuit Court injunction exceeds the subject matter jurisdiction granted to the County Court under Florida Statute 34.01. Accordingly, under the right facts and circumstances, a writ of prohibition could halt a prosecution for a violation of a restraining order in the County Court. There are several benefits if the case is transferred to the Circuit Court. Motions do not have to be filed for taking depositions and the attorney has preserved the argument that the restraining order is void. A Circuit Court's ruling that a restraining order is void would act as res judicata in a proceeding to vacate the injunction.

by: michaeld1974

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