Opinion
No. 71-477.
June 4, 1971. Rehearing Denied July 9, 1971.
Milton E. Grusmark, Miami Beach, for relator.
Robert L. Shevin, Atty. Gen., and Joel Rosenblatt, Asst. Atty. Gen., for respondent.
Before PEARSON, C.J., and CHARLES CARROLL and HENDRY, JJ.
This is an original proceeding in prohibtion. The suggestion alleged there was an initial prosecution of the relator by information filed in the criminal court of record of Dade County, charging the relator with having committed the crime of perjury on July 27, 1967; that the initial prosecution was commenced within the two year limitation period provided by § 932.05 Fla. Stat., F.S.A., and that it had been terminated by the state by nolle prosequi at a time which was more than two years after the date of said alleged offense; that thereafter the present information had been filed in the criminal court of record charging the relator with said offense of July 27, 1967; and that notwithstanding relator's claim the statute of limitation had run, the trial court has ordered relator to be tried thereon.
This court issued a rule nisi in prohibition, to which the respondent filed a response. On consideration thereof after argument on notice we hold the response fails to show cause why prohibition should not issue. Accordingly, we grant judgment in prohibition in favor of the relator, on authority of State v. Guerra, Fla.App. 1971, 245 So.2d 889; and State v. Garcia, Fla. App. 1971, 245 So.2d 293. We assume that in view of our holding in this matter it will not become necessary to issue a formal writ of prohibition herein.
It is so ordered.