Justice Justice Thou Shalt Pursue

John J. Neely, Jr.
Former Justice (Ret.)
Adams County, Florida
Florida Supreme Court
No. 477,
1990 FL 322
Appeal from an order of the circuit court for Adams County, the Honorable Joseph F. Aragon, Jr., Judge, presiding.
The opinion of the Court was delivered by: McNair, P.J.C.
MEMORANDUM OPINION
This cause is before us on remand from the United States Supreme Court.

In this action, the defendants-appellants, in addition to continuing the appeal from an order of the circuit court which denied them cost of court, seek to have the writ of prohibition issued by us.

The United States Supreme Court affirmed this Court's order denying costs, which it had issued, and in so doing did not hold that prohibition was an appropriate remedy for any of the issues raised in the defendants' appeal, but that it was a proper remedy for denial of costs, in violation of Art. V, Sec. 3 of the Florida Constitution. We therefore remand this cause to that Court with instructions that it grant the writ of prohibition ordering the defendants to show themselves presently without the cost of court. Our holding on direct appeal from an order denying costs did not foreclose an appeal from an order dismissing the action without costs as well because that order may in fact be the "final decision" upon which the right to appeal is founded. See Hogue v. Bailey, 159 Fla. 160, 31 So.2d 635. Art. V, Sec. 3 provides: "* * * Where it shall appear that there is no just grounds for granting the writ of habeas corpus, the said writ shall not be used, and the writ of prohibition shall not be discharged, nor shall any appeal therefrom be heard or filed." The Supreme Court has directed that the writ of prohibition should be issued for violations of this provision within a reasonable time.

Should the application of our order be denied, we grant the order of prohibition so that the defendants may appear presently by this Court "without the cost of court".