immediate hearing in Florida

2012As we held on a related speedy trial issue in State v. Demars, 848 So.2d 436 (Fla. 4th DCA 2003): Because the trial court is responsible for setting an immediate hearing, the notice must be brought to the court’s attention. ...

2009We reverse based on State v. Demars, 848 So.2d 436 (Fla. 4th DCA 2003), in which this court explained that strict compliance with the rule is not optional: [A] notice, not a motion, is required to trigger the expiration of recapture period. * * * Because the trial court is responsible for setting an immediate hearing, the notice must be brought to the court’s attention.

2003This is made abundantly clear by a quick review of the United States Supreme Court's decisions in Fuentes v. Shevin, 407 U.S. 67 , 92 S.Ct. 1983 , 32 L.Ed.2d 556 (1972), and Mitchell v. W.T.

2003This is made abundantly clear by a quick review of the United States Supreme Court's decisions in Fuentes v. Shevin, 407 U.S. 67 , 92 S.Ct. 1983 , 32 L.Ed.2d 556 (1972), and Mitchell v. W.T.

1991In Gazil, Inc. v. Super Food Services, Inc., 356 So.2d 312 (Fla. 1978), the Florida Supreme Court similarly held Florida's replevin statute constitutional on the ground that it meets the minimum due process requirements articulated in Mitchell , emphasizing that one of those requirements is the debtor's entitlement to an immediate hearing on the issue of possession. 356 So.2d at 313 . [5] Our research indicates that the requirement of an evidentiary hearing is generally presumed in proceedings held under this section of the statute.

1991In Gazil, Inc. v. Super Food Services, Inc., 356 So.2d 312 (Fla. 1978), the Florida Supreme Court similarly held Florida's replevin statute constitutional on the ground that it meets the minimum due process requirements articulated in Mitchell , emphasizing that one of those requirements is the debtor's entitlement to an immediate hearing on the issue of possession. 356 So.2d at 313 . [5] Our research indicates that the requirement of an evidentiary hearing is generally presumed in proceedings held under this section of the statute.

2014Woodfaulk v. State, 935 So.2d 1225 (Fla. 5th DCA 2006).

2010However, in Logan , this Court cited with approval the reasoning of the Fourth District Court of Appeal in Graves v. State, 642 So.2d 142, 143-44 (Fla. 4th DCA 1994), which found that an exception to the nullity rule was necessary to effectuate the requirement of Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), that the trial court conduct an immediate inquiry into any motion to discharge court-appointed counsel.

2010However, in Logan , this Court cited with approval the reasoning of the Fourth District Court of Appeal in Graves v. State, 642 So.2d 142, 143-44 (Fla. 4th DCA 1994), which found that an exception to the nullity rule was necessary to effectuate the requirement of Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), that the trial court conduct an immediate inquiry into any motion to discharge court-appointed counsel.

2006We grant the petition for writ of habeas corpus for the same reasons expressed in our opinion in Douse v. State, 930 So.2d 838 (Fla. 4th DCA 2006), with the same instructions contained in that opinion: We therefore grant the writ to the extent of requiring an immediate hearing for the trial judge to select the appropriate section 916.17(2) option.

2002This section entitles the defendant to an immediate hearing at which the plaintiff is required “to prove at least probable cause ... for the attachment.” Unique Caterers, 338 So.2d at 1070 .

2001The circuit court relied on Hofmann v. Wainwright, 332 So.2d 18 (Fla.1976), cert. denied, 429 U.S. 981 , 97 S.Ct. 494 , 50 L.Ed.2d 590 , which held that due process does not require an immediate hearing if the parolee is being detained in another jurisdiction: We conclude that Morrissey [Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972) ] does not require Florida to hold immediate parole revocation hearings for parolees who have been convicted of intervening offenses and are imprisoned elseiohere, either by sending its Probation and Parole Commission out of state or by

2001The circuit court relied on Hofmann v. Wainwright, 332 So.2d 18 (Fla.1976), cert. denied, 429 U.S. 981 , 97 S.Ct. 494 , 50 L.Ed.2d 590 , which held that due process does not require an immediate hearing if the parolee is being detained in another jurisdiction: We conclude that Morrissey [Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972) ] does not require Florida to hold immediate parole revocation hearings for parolees who have been convicted of intervening offenses and are imprisoned elseiohere, either by sending its Probation and Parole Commission out of state or by

2001The circuit court relied on Hofmann v. Wainwright, 332 So.2d 18 (Fla.1976), cert. denied, 429 U.S. 981 , 97 S.Ct. 494 , 50 L.Ed.2d 590 , which held that due process does not require an immediate hearing if the parolee is being detained in another jurisdiction: We conclude that Morrissey [Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972) ] does not require Florida to hold immediate parole revocation hearings for parolees who have been convicted of intervening offenses and are imprisoned elseiohere, either by sending its Probation and Parole Commission out of state or by

2001The circuit court relied on Hofmann v. Wainwright, 332 So.2d 18 (Fla.1976), cert. denied, 429 U.S. 981 , 97 S.Ct. 494 , 50 L.Ed.2d 590 , which held that due process does not require an immediate hearing if the parolee is being detained in another jurisdiction: We conclude that Morrissey [Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972) ] does not require Florida to hold immediate parole revocation hearings for parolees who have been convicted of intervening offenses and are imprisoned elseiohere, either by sending its Probation and Parole Commission out of state or by

2001The circuit court relied on Hofmann v. Wainwright, 332 So.2d 18 (Fla.1976), cert. denied, 429 U.S. 981 , 97 S.Ct. 494 , 50 L.Ed.2d 590 , which held that due process does not require an immediate hearing if the parolee is being detained in another jurisdiction: We conclude that Morrissey [Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972) ] does not require Florida to hold immediate parole revocation hearings for parolees who have been convicted of intervening offenses and are imprisoned elseiohere, either by sending its Probation and Parole Commission out of state or by

2001The circuit court relied on Hofmann v. Wainwright, 332 So.2d 18 (Fla.1976), cert. denied, 429 U.S. 981 , 97 S.Ct. 494 , 50 L.Ed.2d 590 , which held that due process does not require an immediate hearing if the parolee is being detained in another jurisdiction: We conclude that Morrissey [Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972) ] does not require Florida to hold immediate parole revocation hearings for parolees who have been convicted of intervening offenses and are imprisoned elseiohere, either by sending its Probation and Parole Commission out of state or by

2001The circuit court relied on Hofmann v. Wainwright, 332 So.2d 18 (Fla.1976), cert. denied, 429 U.S. 981 , 97 S.Ct. 494 , 50 L.Ed.2d 590 , which held that due process does not require an immediate hearing if the parolee is being detained in another jurisdiction: We conclude that Morrissey [Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972) ] does not require Florida to hold immediate parole revocation hearings for parolees who have been convicted of intervening offenses and are imprisoned elseiohere, either by sending its Probation and Parole Commission out of state or by

2001The circuit court relied on Hofmann v. Wainwright, 332 So.2d 18 (Fla.1976), cert. denied, 429 U.S. 981 , 97 S.Ct. 494 , 50 L.Ed.2d 590 , which held that due process does not require an immediate hearing if the parolee is being detained in another jurisdiction: We conclude that Morrissey [Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972) ] does not require Florida to hold immediate parole revocation hearings for parolees who have been convicted of intervening offenses and are imprisoned elseiohere, either by sending its Probation and Parole Commission out of state or by

1998See Bolden v. Potter, 452 So.2d 564 (Fla.1984); Boardman v. Esteva, 323 So.2d 259 (Fla.1975); McLean v. Bellamy, 437 So.2d 737 (Fla. 1st DCA 1983); Peacock v. Wise, 351 So.2d 1134 (Fla. 1st DCA 1977).

1998See Bolden v. Potter, 452 So.2d 564 (Fla.1984); Boardman v. Esteva, 323 So.2d 259 (Fla.1975); McLean v. Bellamy, 437 So.2d 737 (Fla. 1st DCA 1983); Peacock v. Wise, 351 So.2d 1134 (Fla. 1st DCA 1977).

1998See Bolden v. Potter, 452 So.2d 564 (Fla.1984); Boardman v. Esteva, 323 So.2d 259 (Fla.1975); McLean v. Bellamy, 437 So.2d 737 (Fla. 1st DCA 1983); Peacock v. Wise, 351 So.2d 1134 (Fla. 1st DCA 1977).

1995At an evidentiary hearing on a motion to dissolve a prejudgment writ of replevin, "the burden is on the petitioner to prove the grounds upon which the writ was issued by competent and substantial evidence." McMurrain v. State, 573 So.2d at 919 .

1993These time frames, however, are within the parameters validated by the Supreme Court. 443 U.S. at 12-13 , 99 S.Ct. at 2618 . [2] Conahan, 619 So.2d at 990 (Griffin, J., concurring).

1993These time frames, however, are within the parameters validated by the Supreme Court. 443 U.S. at 12-13 , 99 S.Ct. at 2618 . [2] Conahan, 619 So.2d at 990 (Griffin, J., concurring).

1992In addition, because we have concluded that the trial court departed from the essential requirements of law by not setting a prompt hearing, and that the error is not remediable on appeal, we could also treat the petition as one for certiorari. [2] Petitioners also cite Kight v. Dugger, 574 So.2d 1066 (Fla. 1990) (legislature, not supreme court, regulates disclosure of public records); City of North Miami v. Miami Herald Publishing Co., 468 So.2d 218 (Fla. 1985) (same); Tribune Company v. Cannella, 458 So.2d 1075 (Fla. 1984), appeal dismissed sub nom.

1992In addition, because we have concluded that the trial court departed from the essential requirements of law by not setting a prompt hearing, and that the error is not remediable on appeal, we could also treat the petition as one for certiorari. [2] Petitioners also cite Kight v. Dugger, 574 So.2d 1066 (Fla. 1990) (legislature, not supreme court, regulates disclosure of public records); City of North Miami v. Miami Herald Publishing Co., 468 So.2d 218 (Fla. 1985) (same); Tribune Company v. Cannella, 458 So.2d 1075 (Fla. 1984), appeal dismissed sub nom.

1992In addition, because we have concluded that the trial court departed from the essential requirements of law by not setting a prompt hearing, and that the error is not remediable on appeal, we could also treat the petition as one for certiorari. [2] Petitioners also cite Kight v. Dugger, 574 So.2d 1066 (Fla. 1990) (legislature, not supreme court, regulates disclosure of public records); City of North Miami v. Miami Herald Publishing Co., 468 So.2d 218 (Fla. 1985) (same); Tribune Company v. Cannella, 458 So.2d 1075 (Fla. 1984), appeal dismissed sub nom.

1992In Phillips , we summarized Mitchell and North Georgia as setting forth the following requirements: (1) the writ shall not issue without judicial authorization; (2) the writ may issue only upon the allegation of specific facts; (3) the party seeking to invoke a writ is required to post a bond to guarantee the tenant’s interests; (4) the tenant has the opportunity to obtain an immediate hearing to dissolve a writ; and (5) there is the opportunity for a prompt hearing on the merits, though not necessarily a predeprivation hearing. 344 So.2d at 571 .

1991The Court stressed the points of the Louisiana law that required a strong showing by the petitioning creditor before the writ could issue, the opportunity for the debtor to obtain an immediate hearing on an application to dissolve the writ, and the requirement that the writ be dissolved and damages for wrongful issuance be awarded to the debtor if the creditor failed to prove at that hearing the grounds upon which the prejudgment writ was issued. [6] The Court also noted that under the Louisiana law, even if the creditor retained possession of the property pending litigation, the creditor had

1991The Court stressed the points of the Louisiana law that required a strong showing by the petitioning creditor before the writ could issue, the opportunity for the debtor to obtain an immediate hearing on an application to dissolve the writ, and the requirement that the writ be dissolved and damages for wrongful issuance be awarded to the debtor if the creditor failed to prove at that hearing the grounds upon which the prejudgment writ was issued. [6] The Court also noted that under the Louisiana law, even if the creditor retained possession of the property pending litigation, the creditor had