
    STATE of Florida ex rel. Louis James WILLIAMS, Petitioner, v. Honorable H. Paul BAKER, as one of the Judges of the Criminal Court of Record in and for Dade County, Florida, Respondent.
    No. 40274.
    Supreme Court of Florida.
    June 3, 1971.
    
      Tobias Simon and Beverly Gurevitz, Miami, for petitioner.
    H. Paul Baker, in pro. per.
    Jerry Mosca and Shalle Stephen Fine, Miami, for intervenor.
   PER CURIAM.

In this original proceeding in prohibition, we determined that a rule absolute in prohibition should issue, but the issuance of a formal writ was withheld in full confidence that the trial court would discharge the petitioner in accordance with the law as set forth in the opinion. The trial court refused to discharge the defendant and to dismiss the prosecution, purportedly basing its ruling on State of Florida ex rel. Soodhalter v. Baker (1971), Fla.App., 242 So.2d 814. The latter case merely involved the question of whether this Court could transfer a petition for writ of prohibition to the District Court of Appeal where this Court lacked jurisdiction. It was pointed out that we have jurisdiction .in prohibition proceedings when questions are involved upon which a direct appeal to this Court is allowed as a matter of right. Fla.Const., art. V, § 4(2), F.S.A. A constitutional question was raised in the case sub judice at the trial level and we had jurisdiction.

Petitioner has now filed a motion for the issuance of a formal writ of prohibition. Ordinarily, the Court is reluctant to issue a formal writ where the respondent is a member of the judiciary. However, in view of the evident disagreement of the trial court with both the correctness and wisdom of the opinion of this Court in this case and the trial court’s refusal to carry out the mandate as expressed in our opinion, we feel it necessary to issue a formal writ of prohibition, and it is hereby ordered that same be issued.

The petitioner should not be the victim of an intellectual struggle between this Court and the trial court. In an effort to avoid any further misunderstanding or controversy, we have concluded to exercise our power under Fla.Stat. § 59.34, F.S.A., and enter the judgment which the lower court should have entered. Accordingly, it is further

Ordered and adjudged that petitioner, Louis James Williams, insofar as the charge of robbery alleged in the information filed November 19, 1969, is concerned, be discharged from custody.

It is so ordered.

ROBERTS, C. J., and CARLTON, ADKINS, BOYD and McCAIN, JJ., concur.  