Third District Court of Appeal 

State of Florida 

Opinion filed May 15, 2024. 

Not final until disposition of timely filed motion for rehearing. 

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No. 3D22-1875 

Lower Tribunal No. B22-20916 

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City of Miami Beach, 

Appellant, 

vs. 

Victor Guyton, 

Appellee. 

An Appeal from the County Court for Miami-Dade County, Michael G. 

Barket, Judge. 

Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant 

Attorney General; Ricardo J. Dopico, City Attorney, City of Miami Beach, and 

Robert F. Rosenwald, Jr., Chief Deputy City Attorney, and Woody Clermont, 

Assistant City Attorney, for appellant. 

Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant 

Public Defender, for appellee. 

Before EMAS, LOBREE and BOKOR, JJ. 

EMAS, J. 
2

The City of Miami Beach appeals from a trial court order dismissing a 

criminal charge against Victor Guyton for urinating in public, a violation of 

section 70-42 of the City of Miami Beach Code of Laws and Ordinances. 

Because the trial court did not have the authority to dismiss the charge under 

the circumstances presented, we reverse the order of dismissal and remand 

the case for further proceedings. 

The relevant facts are not in dispute: Guyton was arrested and taken 

into custody on Friday, October 21, 2022, and charged by arrest affidavit with 

urinating in public. Guyton remained in custody, and his first appearance 

hearing was held the following day (Saturday, October 22). When Guyton’s 

case was called, the municipal prosecutor was not present, and there is no 

evidence in the record that the City received notice of the proceeding. The 

assistant public defender moved for dismissal based on the municipal 

prosecutor’s absence from the proceeding, positing that if his client (i.e., the 

defendant) was not present in court, the court would issue a bench warrant.

The first appearance judge announced he was granting the motion and 

entered a dismissal of the charge. The trial court stamped the arrest affidavit 

“DISMISSED JAIL ARR.” 
3

The City appealed1 and asserts that, under the circumstances 

presented, the trial court was without authority to dismiss the charge against 

Guyton, and that doing so “constituted an improper infringement upon the 

State’s discretion to prosecute.” State v. Leon, 967 So. 2d 437, 437 (Fla. 4th 

DCA 2007). See also State v. Brosky, 79 So. 3d 134, 135 (Fla. 3d DCA 2012)

(reiterating that “in the absence of a statute or a proper motion to dismiss, 

the decision whether to prosecute or to dismiss charges is a determination 

to be made solely by the State”); State v. Bonnett, 985 So. 2d 1194 (Fla. 3d 

DCA 2008) (finding dismissal of charges as sanction for prosecutor’s

behavior was reversible error); State v. L.E., 754 So. 2d 60, 61 (Fla. 3d DCA 

2000) (“This court has repeatedly stated that the dismissal of criminal 

charges is an extreme sanction reserved solely for those instances where no 

feasible alternative exists. The reason that dismissal of criminal charges 

should be utilized as a last resort is that this sanction punishes the public not 

the state or the witness who fails to appear, and results in a windfall to the 

appellee.”)

1 The City filed a notice of appeal on October 28, 2022, and thereafter a 

motion to relinquish jurisdiction to the trial court for rendition of a written 

order. This court granted the motion, and a written order was rendered on 

March 15, 2023, nunc pro tunc to October 22, 2022. 
4

On appeal, Guyton does not contest the law on this issue, but argues 

the error was not preserved because the City failed to raise an objection to 

dismissal in the trial court during the relinquishment period, instead sending

the trial court a proposed order of dismissal to allow the appeal to proceed. 

Given the narrow scope of our relinquishment order however,2 the City did 

precisely what it was authorized to do (obtain a written order of dismissal 

from the trial court) and could not lodge an objection to (or seek rehearing 

of) the trial court’s oral pronouncement dismissing the charge against 

Guyton. See Ward v. State, 405 So. 2d 503 (Fla. 2d DCA 1981) (the filing 

of a notice of appeal from a final order vests exclusive jurisdiction in the 

appellate court, and a trial court is without jurisdiction to amend that final 

order absent a relinquishment of jurisdiction for such a stated purpose); Fla. 

R. App. P. 9.600(b) (“If the jurisdiction of the lower tribunal has been divested 

by an appeal from a final order, the court by order may permit the lower 

tribunal to proceed with specifically stated matters during the pendency of 

the appeal.”) (emphasis added); see also Yampol v. Turnberry Isle S. Condo. 

Ass’n, Inc., 137 So. 3d 1124, 1125 (Fla. 3d DCA 2014) (quashing trial court 

2 Our relinquishment order provided that “jurisdiction of this cause is

temporarily relinquished to the trial court for a period of thirty (30) days from

the date of this Order for the trial court to enter a written order of 

dismissal.” (Emphasis added.)
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order entered following appellate court’s relinquishment of jurisdiction, 

because the trial court’s order “exceeded the express purpose of the 

relinquishment” as authorized by the appellate court); Palma Sola Harbour 

Condo., Inc. v. Huber, 374 So. 2d 1135, 1138 (Fla. 2d DCA 1979) (holding 

that a trial court order which exceeds the scope of the “specifically stated 

matters” authorized by the appellate court for the trial court to consider on 

relinquishment of jurisdiction is invalid).

This case is indistinguishable, both on its facts and the applicable 

analysis, from our recent decision in City of Miami Beach v. Adalberto 

Cosme, 49 Fla. L. Weekly D322, 2024 WL 463232 (Fla. 3d DCA February 7, 

2024). As we held in that case, and reaffirm here, the trial court’s order of 

dismissal, entered without notice and an opportunity to be heard, violated 

the City's due process rights. In addition, given the City’s sole authority to 

determine whether to proceed with the prosecution of the case, and in the 

absence of a proper motion to dismiss, the trial court exceeded its authority 

in dismissing the charge. 

We therefore reverse the order of dismissal and remand for further 

proceedings.
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City of Miami Beach v. Victor Guyton

Case No. 3D22-1875

LOBREE, J. (specially concurring)

I concur with the majority that in sua sponte dismissing the case, the 

trial court improperly ruled on an issue that was not before it and interfered 

with the City’s discretion to bring charges against Guyton. I further concur 

that this case is factually and analytically indistinguishable from our

decision in City of Miami Beach v. Cosme, 49 Fla. L. Weekly D322 (Fla. 3d

DCA Feb. 7, 2024), and thus we are compelled to reverse. However, 

I agree with Judge Miller’s dissenting views in Cosme that this error

should have been found to be invited or unpreserved, id. at D323-324

(Miller, J., dissenting), and at a minimum, that in reversing the case on due 

process grounds, our court errs in relying on an argument advanced by the

City for the first time in the reply brief, see City of Miami Beach v. Cosme, 

49 Fla. L. Weekly D908a (Fla. 3d DCA Apr. 24, 2024) (Miller, J., dissenting

from denial of rehearing or clarification).