STATE OF FLORIDA v. SHANE MANCUSO

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE OF FLORIDA,

Petitioner,

v.

SHANE MANCUSO,

Respondent.

No. 4D22-808

[February 1, 2023]

Petition for Writ of Prohibition to the County Court for the Seventeenth

Judicial Circuit, Broward County; Edward Harold Merrigan, Judge; L.T.

Case No. 06-2021-CT-017870A.

Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuña,

Assistant Attorney General, West Palm Beach, for petitioner.

Andre A. Rouviere of the Law Offices of Andre A. Rouviere, Coral Gables,

for respondent.

ON MOTION FOR REHEARING AND FOR CERTIFICATION

CONNER, J.

Having previously issued an order denying the state’s alternative

petitions for prohibition or certiorari, we grant the state’s motion for

rehearing opinion, vacate the dismissal order, and issue the following

opinion.

The state alternatively petitions for prohibition or certiorari relief from

trial court orders that permit the transfer of Respondent Shane Mancuso’s

criminal case to a veterans treatment court program (“veterans court”). We

initially denied the petition without prejudice to the state’s opportunity to

appeal any dismissal of the lower court proceedings by the trial court. The

state moved for rehearing, asking this Court to issue an opinion and certify

a question of great public importance.

We determine that the trial court exceeded case jurisdiction and

departed from the essential requirements of law resulting in an irreparable

harm that cannot be remedied on appeal. We therefore grant the petition

for prohibition and certiorari and quash the orders authorizing the transfer

of Mancuso’s criminal case to veterans court. We decline the state’s

request to certify a question of great public importance because we deem

the pertinent statutory language to be clear and unambiguous.

Background

In 2012, the Seventeenth Judicial Circuit established a veterans court.

Due to statutory changes that became effective July 1, 2021 regarding

veterans courts, the Seventeenth Circuit chief judge entered an

administrative order in August 2021 which implemented the statutory

changes applicable to that circuit’s veterans court.

In December 2021, Mancuso was arrested for driving under the

influence (“DUI”) with injury or property damage; DUI; and refusal to

submit to a breath test. The state subsequently charged Mancuso by

information in county court with the same crimes.

Thereafter, the trial court transferred Mancuso’s criminal case to

veterans court by written order. Mancuso attended the first hearing in

veterans court by video. His attorney and the state attorney appeared in

person before the trial court. At the hearing, the state objected to

Mancuso’s criminal case being transferred to veterans court, causing the

trial court to reset the hearing to a later date so that Mancuso could be

present in person. Prior to the second hearing, the trial court entered a

second order approving the transfer of Mancuso’s criminal case to veterans

court.

At the second hearing, the state again objected to Mancuso’s criminal

case being transferred to veterans court. The state also advised the trial

court that the victim objected to the transfer. The trial court noted the

state’s and the victim’s objections, but continued to approve the transfer

of Mancuso’s criminal case to veterans court.

The State petitioned this Court for a writ of prohibition, or in the

alternative, a writ of certiorari. Mancuso filed a response, and the state

filed a reply.

Appellate Analysis

Before examining whether we have prohibition and certiorari

jurisdiction to review the transfer orders, we note the state constitutional

parameters of prosecutorial discretion. Under the Florida Constitution,

2

the decision to charge and prosecute is an executive function, and the

state attorney has complete discretion in deciding whether and how to

prosecute. Art. II, § 3, Fla. Const. (“No person belonging to one branch

shall exercise any powers appertaining to either of the other branches

unless expressly provided herein.”); Art. V, § 17, Fla. Const. (“[T]he state

attorney shall be the prosecuting officer of all trial courts . . . .”); see also

State v. Cleveland, 390 So. 2d 364, 367 (Fla. 4th DCA 1980) (Cleveland I)

(“[T]he decision to divert a defendant into the Florida pretrial intervention

program, as stated in the statute, is basically within the prosecutor’s

function of charging and prosecuting.”); State v. Bloom, 497 So. 2d 2, 3

(Fla. 1986) (holding the decision to charge and prosecute is an exclusively

executive function, and the trial judge did not have the authority to make

a pre-trial determination as to the applicability of the death penalty). The

constitutional context of prosecutorial discretion is important for

analyzing whether we have prohibition and certiorari jurisdiction.

We also note that we, as well as our supreme court, have issued

opinions regarding the issue of whether state attorney approval is required

for participation in a pretrial diversionary program. See Cleveland I, 390

So. 2d at 365; Cleveland v. State, 417 So. 2d 653, 654 (Fla. 1982)

(Cleveland II). The introductory paragraph in Cleveland I states: “This is

a petition for writs of common law certiorari and prohibition wherein the

State of Florida seeks review of an order entered by the Circuit Court

requiring the Department of Corrections to accept defendant into the

pretrial intervention program created under Section 944.025, Florida

Statutes (1979).” Cleveland I, 390 So. 2d at 364–65. The final paragraph

of the opinion states: “We conclude that the trial court acted beyond the

scope of its jurisdiction in reviewing the reasons for the prosecutor’s

refusal to consent. The order below is quashed, and the cause remanded

for further proceedings.” Id. at 367. Our opinion does not state whether

we granted the certiorari petition, the prohibition petition, or both.

Likewise, in Cleveland II, the supreme court approved Cleveland I without

stating whether prohibition relief, certiorari relief, or both was approved.

Cleveland II, 417 So. 2d at 654.

Our research has revealed other opinions by our sister courts which

have reviewed the issue and have either granted certiorari or prohibition

relief, without explaining the details of the analysis for appellate

jurisdiction. Thus, in this opinion, we explain the analysis of our appellate

jurisdiction in this case.

Prohibition Jurisdiction

3

“Prohibition is an extraordinary writ by which a superior court may

prevent an inferior court or tribunal, over which it has appellate and

supervisory jurisdiction, from acting outside its jurisdiction.” Baden v.

Baden, 260 So. 3d 1108, 1111 (Fla. 2d DCA 2018) (quoting Mandico v.

Taos Constr., Inc., 605 So. 2d 850, 853 (Fla. 1992)). “Prohibition 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).

“[T]he word ‘jurisdiction’ ordinarily refers to ‘subject matter’ or

‘personal’ jurisdiction, but there is a third meaning (‘case’ jurisdiction)

which involves the power of the court over a particular case that is within

its subject matter jurisdiction.” Tobkin v. State, 777 So. 2d 1160, 1163

(Fla. 4th DCA 2001). A trial court acts in excess of its jurisdiction when it

acts without case jurisdiction. See id. at 1164 (determining the trial court

acted without case jurisdiction when it entered orders after a domestic

violence injunction case was voluntarily dismissed). Thus, a writ of

prohibition is proper when the petitioner shows that the trial court

exceeded case jurisdiction. See id. at 1163; Baden, 260 So. 3d at 1111

(granting prohibition after determining the trial court exceeded case

jurisdiction).

Additionally, “[a] writ of prohibition is the appropriate remedy when a

trial court attempts to interfere with the prosecutorial discretion of a state

attorney.” Bloom, 497 So. 2d at 3 (citing Cleveland II, 417 So. 2d at 654).

In Cleveland II, the supreme court approved Cleveland I, wherein we

determined that the trial court acted beyond the scope of its jurisdiction

when it disagreed with the state’s reasons for not consenting to Cleveland

entering a pretrial intervention program and ordered the Department of

Corrections to accept Cleveland into the program. Cleveland I, 390 So. 2d

at 367. In reviewing Cleveland I, the supreme court noted that the primary

question presented was “whether the pretrial diversion decision is a

judicial or prosecutorial function.” Cleveland II, 417 So. 2d at 654. The

supreme court concluded:

The pretrial diversion is essentially a conditional decision not

to prosecute similar to the nolle prosequi situation postulated

by [State v. Jogan, 388 So. 2d 322 (Fla. 3d DCA 1980)]. It is

a pretrial decision and does not divest the state attorney of the

right to institute proceedings if the conditions are not met.

The pretrial intervention program is merely an alternative to

prosecution and should remain in the prosecutor’s discretion.

. . . The fact that the state attorney has th[e] discretion to

reinstate prosecution is consistent with the view that the

4

pretrial diversion consent by the state attorney is a

prosecutorial function.

Id.

We disagree with Mancuso’s argument that prohibition is not

appropriate in this case because the purpose of prohibition is “to prevent

the doing of something, not to compel the undoing of something already

done” and “cannot be used to revoke an order already entered,” citing

Stokes v. Jones, 319 So. 3d 166, 170–71 (Fla. 1st DCA 2021) (quoting

Hamlin v. E. Coast Props., Inc., 616 So. 2d 1175, 1176 (Fla. 1st DCA 1993)).

Because Mancuso’s participation in veterans court postpones the state’s

ability to proceed with a prosecution, we agree with the state’s argument

that the transfer orders have an ongoing effect which supports prohibition

as a remedy. The state correctly points out that Stokes actually supports,

rather than negates, the conclusion that prohibition is an appropriate

remedy in this case, because the First District concluded:

[T]his is not a case where Petitioners are trying, by prohibition,

to undo conclusively accomplished actions by the trial court.

Rather, the trial court contemplates ongoing actions, which

Petitioners assert the court does not have jurisdiction to take.

Therefore, we do not find the use of prohibition in those

circumstances to be precluded here.

319 So. 3d at 171.

Determining that prohibition relief is available here, we next determine

whether the trial court exceeded its case jurisdiction. Three statutes are

material to this analysis: sections 948.08(7)(a), 948.16(2)(a), and

394.47891(4) and (8), Florida Statutes (2021).

Section 948.08 discusses different pretrial intervention programs,

including the veterans treatment court programs for persons charged with

qualifying felonies. 1 Section 948.08(7)(a) provides:

A person who is charged with a felony, other than a felony

listed in s. 948.06(8)(c), and who is identified as a veteran or

a servicemember, as defined in s. 394.47891(2)(d) or (c),

respectively, and is otherwise qualified to participate in a

1 We deem the statute pertaining to veterans treatment court programs for

felonies material to our analysis because, as seen below, the statute pertaining

to misdemeanors has the same requirements, making the legislative intent clear.

5

veterans treatment court program under s. 394.47891 is

eligible for admission into a veterans treatment court program

pursuant to the requirements of s. 394.47891(4) and (8).

§ 948.08(7)(a), Fla. Stat. (2021) (emphasis added).

Section 948.16 discusses different misdemeanor pretrial intervention

programs, including the misdemeanor veterans treatment court program.

Section 948.16(2)(a) provides:

A veteran or a servicemember, as defined in s. 394.47891(2)(d)

or (c), respectively, who is otherwise qualified to participate in

a veterans treatment court program under s. 394.47891, and

is charged with a misdemeanor is eligible for admission into a

misdemeanor veterans treatment court program, for a period

based on the program’s requirements and the treatment plan

for the offender, pursuant to the requirements of s.

394.47891(4) and (8).

§ 948.16(2)(a), Fla. Stat. (2021) (emphasis added).

Thus, to be eligible for a veterans treatment court program, whether for

a felony or misdemeanor, a veteran must satisfy the requirements of

sections 394.47891(4) and (8). See also Simeone v. State, 276 So. 3d 797,

804 (Fla. 4th DCA 2019) (determining the statutory provision setting forth

who is “eligible” for veterans court provided the criteria which the

defendant must satisfy to be “qualified to participate or be chosen” for

veterans court).

Section 394.47891 was entirely rewritten effective July 1, 2021. See

2021 Fla. Sess. Law Serv. Ch. 2021-240 (West). The prior version of

section 394.47891, in effect from October 1, 2019, to June 30, 2021, was

one paragraph and provided in pertinent part:

Entry into any Military Veterans and Servicemembers Court

Program must be based upon the sentencing court’s

assessment of the defendant’s criminal history, military

service, substance abuse treatment needs, mental health

treatment needs, amenability to the services of the program,

the recommendation of the state attorney and the victim, if any,

and the defendant’s agreement to enter the program.

6

Notably, the amended version of section 394.47891 applicable here has

eleven numbered subsections. Subsection (4), entitled “Admission,”

provides:

A defendant who meets the eligibility requirements under

subsection (8) may be admitted to a veterans treatment court

program at any stage of a criminal proceeding. A defendant

seeking to participate in a veterans treatment court program

must submit an application to the state attorney. The state

attorney must review each application and determine whether

the defendant meets the eligibility requirements in subsection

(8).

§ 394.47891(4), Fla. Stat. (2021) (emphasis added). Subsection (8),

entitled “Eligibility,” provides in pertinent part:

(a) A defendant may participate in a veterans treatment court

program if he or she is approved by the state attorney, in

consultation with the court . . . .

§ 394.47891(8)(a), Fla. Stat. (2021) (emphasis added).

Based on the plain language of the applicable statutes, the state

attorney’s approval for Mancuso to participate in veterans court is required

for Mancuso to be eligible to participate. Under the applicable statutes,

“[t]here is to be no judicial second-guessing of the State Attorney’s

withholding of consent.” State v. Winton, 522 So. 2d 463, 463 (Fla. 3d

DCA 1988).

Here, the state attorney objected to Mancuso’s participation in veterans

court. Yet, the trial court by order allowed Mancuso’s criminal case to be

transferred to veterans court over the state attorney’s objection. The lower

court has acted beyond its judicial authority and case jurisdiction, and in

violation of the statutory requirements for eligibility to participate in

veterans court. We hold that prohibition relief is warranted.

Certiorari Jurisdiction

Before a court may grant certiorari relief, the petitioner must establish

a departure from the essential requirements of law that results in a

material injury for the remainder of the case that cannot be corrected by

appeal. Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011). The threshold

jurisdictional question for certiorari relief focuses on “whether there is a

material injury that cannot be corrected on appeal, otherwise termed as

7

irreparable harm.” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So.

3d 344, 351 (Fla. 2012).

Based on the analysis in Cleveland I and Cleveland II that admission

and participation in a pretrial intervention program requires consent by

the state attorney, clearly court-ordered participation in such programs

without the state attorney’s consent harms the state because it infringes

on prosecutorial decision-making and effectively negates the state’s ability

to prosecute its case. As Cleveland I made clear, “the [pretrial intervention]

program as established by the Legislature is within the prosecutorial

rather than the judicial realm; therefore, the State Attorney’s reason for

denying consent may not be reviewed by the Circuit Court.” Cleveland I,

390 So. 2d at 365; see also Gincley v. State, 267 So. 3d 444, 446 (Fla. 4th

DCA 2019) (determining certiorari relief appropriate where the chief judge

exceeded his jurisdiction by entering an administrative order that imposed

pretrial intervention program admission criteria which exceeded criteria

imposed by statute).

Moreover, the harm imposed by Mancuso’s participation in veterans

court without the state attorney’s consent cannot be remedied on appeal

for two reasons: (1) it infringes on the state’s prosecutorial discretion; and

(2) it violates the separation of powers by “encroach[ing] on the legislature’s

power to determine which defendants charged by the state attorney are

eligible for [the program].” State v. Leukel, 979 So. 2d 292, 295 (Fla. 5th

DCA 2008). Additionally, we agree with the state that if Mancuso

successfully completes veterans court, sections 948.16(4) and

948.08(7)(c), Florida Statutes (2021), require that his criminal case be

dismissed.

Finally, the lower court’s failure to comply with sections 394.47891(4)

and (8)(a) constituted a clear departure from the essential requirements of

the law. See W.G. v. State, 910 So. 2d 330, 332 (Fla. 4th DCA 2005)

(explaining that courts are bound to enforce the plain meaning of the

statute the legislature has created, and concluding the trial court departed

from the essential requirements of law by ordering restorative services by

a private provider, rather than the Department of Children and Families,

contrary to plain language of statute); State v. Patterson, 325 So. 3d 142,

144–45 (Fla. 5th DCA 2020) (finding certiorari relief warranted when trial

court released defendant on bail without conducting a hearing and making

the required findings under the plain language of the statute).

Also, section 394.47891(4) and the Seventeenth Judicial Circuit’s

Administrative Order require that a defendant seeking participation in

veterans court must submit an application to the state attorney. Mancuso

8

never applied to the state attorney’s office to participate in veterans court.

As such, the trial court’s approval of the transfer of Mancuso’s criminal

case into veterans court without the required application departs from the

essential requirements of law.

Because the trial court departed from the essential requirements of law

by permitting Mancuso’s participation in veterans court without Mancuso

submitting an application to the state attorney and over the state

attorney’s objection, and because the trial court created a harm to the

state’s prosecutorial discretion and to the doctrine of separations of powers

that cannot be remedied on appeal, we hold that certiorari relief is

warranted.

Conclusion

Having determined that the trial court exceeded case jurisdiction and

departed from the essential requirements of law resulting in an irreparable

harm that cannot be remedied on appeal, we grant the alternative petition

for prohibition or certiorari relief 2 and quash the orders authorizing the

transfer of the criminal case against Mancuso in Case Number 06-2021-

CT-017870A to the Seventeenth Judicial Circuit Veterans Treatment Court

Program.

Prohibition and Certiorari relief granted.

GROSS and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

2This opinion should not be construed to require that alternative relief must be

sought to remedy the error in this case. Depending on the facts and procedural

posture of the case, either prohibition or certiorari relief may be appropriate.

9