Third District Court of Appeal
State of Florida
Opinion filed March 23, 2017.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D17-570 & 3D17-569
Lower Tribunal Nos. 16-15415A & 16-15415B
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Pedro Soto, et al.,
Petitioners,
vs.
The State of Florida,
Respondent.
Cases of Original Jurisdiction—Prohibition.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, for petitioners.
Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney
General, for respondent.
Before SALTER, FERNANDEZ and SCALES, JJ.
SCALES, J.
We consolidate these petitions for writ of prohibition and deny both petitions
based on this Court’s decision in State vs. McCoy,
369 So. 2d 1027 (Fla. 3d DCA
1979) and the decision of our sister court in State vs. Frazee,
617 So. 2d 350 (Fla.
4th DCA 1993).
We note that petitioners rely heavily on the dicta in Obanion vs. State,
496
So. 2d 977, 981 (Fla. 3d DCA 1986), for the proposition that petitioners were
continuously available for trial despite the fact that petitioners’ attorney was counsel
for another criminal defendant whose trial was scheduled to begin at the same time,
and before the same judge, as petitioners’ scheduled trial. Under the circumstances
of this case, however, McCoy is controlling. In Obanion, the continuance had been
determined by the court before defense counsel became involved in the probation
violation hearing. Therefore, in Obanion, the discussion regarding counsel’s
availability—due to the probation violation hearing—was not necessary to the
decision of the Court. Unlike in this case, counsel in Obanion was not otherwise
unavailable at the time that the continuance was announced by the trial court. See
Fla. R. Crim. P. 3.191(j)(2).
Petitions consolidated and denied.
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