STATE V. FUTCH

State: Florida

Court: Florida Third District Court

Docket No: 06-3207

Case Date: 04/30/2008

Preview:Third District Court of Appeal
State of Florida, January Term, A.D. 2008
Opinion filed April 30, 2008. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D06-3207
Lower Tribunal No. 94-28357

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The State of Florida,
Appellant, vs.

Vantoria Futch,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Roberto M. Pineiro, Judge. Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellant. Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellee.

Before COPE, WELLS and ROTHENBERG, JJ. WELLS, Judge.

The State of Florida appeals an order wherein the trial court declared its intent not to enforce a municipal ordinance requiring that the defendant not live within 2,500 feet of a school. We treat the instant appeal as a petition for writ of certiorari, grant the petition and quash the order, finding that the trial court lacked subject matter jurisdiction to enter it. See Hudson v. Hoffman, 471 So. 2d 117, 118 (Fla. 2d DCA 1985) ("Common law certiorari is the proper vehicle to review whether the lower court acted in excess of its jurisdiction."); State v. Sotto, 348 So. 2d 1222, 1223 (Fla. 3d DCA 1977) (granting certiorari and quashing orders mitigating the defendants' sentences because the trial court lacked jurisdiction to enter them). Futch was charged in 1995 with five counts of lewd assault on two children under the age of sixteen. On April 6, 1995, he pled guilty to three of those counts and was sentenced to probation. After his probation was modified, it was revoked, and Futch was sentenced to three years in prison. He subsequently served his time and was released. On December 14, 2006, Futch appeared for a status report that he requested. At that time, he asked the court to excuse him from complying with a Miami-Dade County ordinance which precludes "any person who has been convicted of a violation of Sections 794.011 (sexual battery), 800.04 (lewd and lascivious acts on/in presence of persons under age 16) . . . or a similar law of another jurisdiction,

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in which the victim of the offense was less than sixteen (16) years of age," from residing within 2,500 feet of any school. See Miami-Dade County Code

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