355 So. 2d 772 | Fla. | 1978
This is an original proceeding in which the Florida Department of Natural Resources, Reubin O’D. Askew, Governor, Robert L. Shevin, Attorney General, Doyle Conner, Commissioner of Agriculture, Thomas D. O’Malley, Treasurer, Ralph D. Turlington, Commissioner of Education, Gerald Lewis, Comptroller, and Bruce A. Smathers, Secretary of State, seek a writ of prohibition to prohibit the District Court of Appeal, Second District, from purporting to exercise jurisdiction to entertain Case No. 77-464 on its docket. We have jurisdiction pursuant to Article V, Section 3(b)(4), Florida Constitution.
Because this case is controlled by a recent decision of this Court we deem it unnecessary to issue a rule nisi in prohibition and to require a return by the respondent. For the reason hereinafter stated we issue the writ of prohibition.
On March 15, 1977, Sunset Realty Corporation filed in the District Court of Appeal, Second District, a petition for review of final agency action under Section 120.68(2), Florida Statutes (1975). That petition was docketed in the District Court of Appeal as Case No. 77-464. By that petition Sunset Realty Corporation seeks review of the final agency action of the Department of Natural Resources in passing Chapter 16(b)-26.06, Florida Administrative Code at a meeting on January 6, 1977. That rule was adopted by the agency on January 25, 1977, by filing with the Department of State the necessary copies of the Chapter. On March 31, 1977, relators filed a motion to dismiss the petition for review in the District Court of Appeal, Second District. The basis for the motion was that the petition filed in that case, having been filed 49 days after the adoption of the rule by the Department of Natural Resources, was untimely filed. By order filed April 13, 1977, the District Court of Appeal, Second District, denied relators’ motion to dismiss.
This case is governed by our recent decision in Florida Administration Commission v. District Court of Appeal, First District, 351 So.2d 712 (Fla.1977), wherein we held that agency action is final in rule-making procedures when the rule has been adopted and filed with the Department of State. Since the petition in this case was not filed within the time allowed under Florida Appellate Rule 4.5(c)(1), jurisdiction did not vest in the District Court of Appeal, Second District.
Accordingly, the writ of prohibition requested by relators is granted and the Judges of the District Court of Appeal, Second District, are prohibited from exercising jurisdiction to entertain Case No. 77-464 on the docket of that court.
It is so ordered.
