Decision or No Decision: Getting Carded at the Successive Writ Bar
When it comes to extraordinary writ petitions, many of us have likely received, at some point in our career, an order from a reviewing court dismissing our masterpiece that says, “Once a petitioner seeks relief in a particular court by means of a petition for extraordinary writ, he has picked his forum. He is not entitled to a second or third opportunity for the same relief by the same writ in a different court.”[1] Except for a final sentence that reads, “No motion for rehearing will be entertained by this Court,” the order ends there, leaving us scratching our heads wondering, “Wait, what did I miss?” Naturally, we take a close look at Jenkins v. Wainwright, 322 So. 2d 477 (Fla. 1975), because that’s what the court relied on.
In Jenkins, there is another important sentence immediately following, “He is not entitled to a second or third opportunity for the same relief by the same writ in a different court,” which reads, “Once he has picked this forum, his remedy from an adverse decision is by the appropriate appellate process and not by another petition for an extraordinary writ.”[2] The operative word is “decision.” In Jenkins, the defendant never got a ruling on the merits from an appellate court related to the trial court’s denial of her two motions for post-conviction relief because her first lawyer, shall we say, messed up.[3] As the court noted, “Different counsel now represents petitioner before this Court and was not responsible for the following procedural errors.”[4]
Jenkins received two convictions for possession of two different substances (marijuana and an unspecified hallucinogenic drug) resulting from the same arrest.[5] The trial court imposed two consecutive five-year sentences.[6] Jenkins moved to correct the two sentences to impose a single sentence, which the trial court denied.[7] Although she initially appealed, her court-appointed public defender advised her to dismiss it and move instead in the lower court to correct the sentence under Fla. R. Crim. P. 3.850.[8] She did, and that motion was also denied.[9] Except this time, the lawyer didn’t file a notice of appeal at all.[10] More than three months after the deadline to file a notice of appeal had passed, Jenkins’s lawyer — still the court-appointed public defender — filed a petition for habeas corpus in the district court seeking leave to file a delayed appeal, having missed the critical appeal deadline because of “an oversight.”[11] The district court denied the petition, and Jenkins obtained a new lawyer.[12]
Packaging the issues into a new habeas petition that focused on Jenkins’ previous lack of proper representation, Jenkins’ new counsel presented this writ petition to the Florida Supreme Court, which considered it.[13] Why? Because the failure of Jenkins’ former court-appointed attorney to appeal either the trial court’s orders or the district court’s denial of the first habeas petition prevented Jenkins’ post-conviction issue from ever being reviewed on the merits.[14] Although Jenkins certainly picked her forum for review of her initial petition for habeas corpus — the Fourth DCA — she did not receive a “decision,” adverse or otherwise, because her petition was not reviewed on the merits until the Supreme Court considered it.[15] A ruling must be “on the merits” for an issue to have truly been decided.[16]
What, then, is a ruling on the merits, otherwise known as a “decision,” in the context of an extraordinary writ petition? Before 2004, the districts were split on this issue, with the First, Second, and Fifth District courts holding that a simple, unelaborated denial stating “denied” without more, did not constitute a decision on the merits,[17] while the Third and Fourth districts held it did.[18] Enter Topps v. State, 865 So. 2d 1253 (Fla. 2004), in January of that year, resolving that conflict given the clear need for uniformity on such a critical and elemental topic. In doing so, the court went to great lengths to explain not only what a decision is, but also what it is not.
An unelaborated denial — we know them well — is an order that merely says “denied” and nothing more, essentially. In Topps, the Florida Supreme Court firmly established that an unelaborated denial of an extraordinary writ petition is not a decision on the merits.[19] With no decision on the merits, a litigant is not barred from presenting the same or a substantially similar issue on appeal or by a subsequent writ petition in the same or a different Florida court.[20] The rationale is based on principles of res judicata and collateral estoppel, which should not be surprising, because whether a writ petition is deemed successive turns on Finality, the first bouncer waiting at the doorway of the Successive Writ Bar.
Topps made Finality’s job easy, declaring that if a reviewing court wants to ensure that its denial is on the merits, it need only add the words “on the merits” or “with prejudice” to its order denying the writ.[21] Those few words signal to Finality that the merits of a petition have indeed been considered by the court. Then, Finality will bar that litigant from filing yet another petition requesting the same or similar relief or from doing so later on direct appeal. Said another way, a litigant quickly gets bounced out of the Successive Writ Bar thanks to Finality.
Does this mean that an unelaborated denial of a writ will allow us to assume we can gain access to another district court or higher court with a successive petition seeking the same or similar relief? Unfortunately, no. There’s another bouncer on duty looming in a dark corner called Discretion. As the nature of an extraordinary writ is not of absolute right, the granting of a writ lies within the discretion of the court. “Therefore, extraordinary writs may be denied for numerous and a variety of reasons, some of which may not be based upon the merits of the petition.”[22] For example, a writ may be denied because the relief sought is either premature or moot, or the appellate court may deem it more appropriate to review the allegations on direct appeal later.[23] Unlike Finality, what signals Discretion to deny access to the writ is generally not obvious. Discretion also takes a lot longer before bouncing you out.
What is, perhaps, more frustrating than not knowing why Discretion bounced our masterpiece out of the Successive Writ Bar, is having an opponent in the trial court who insists that the unelaborated denial means the district court rejected our arguments on the merits and then tries to convince the judge that our petition, which was never reviewed on the merits, is meritless, and therefore, so is our entire case. Understanding the nature of the “bouncers,” Finality and Discretion, who determine whether an extraordinary writ petition is admitted to the V.I.P. room, becomes very useful should we have to educate counsel or the court.
At the end of the day, the extraordinary writ procedure is not a substitute for an appeal.[24] Speaking of appeals, a per curiam affirmed (PCA) decision from a district court issued in an appeal, whether final or non-final, should never be confused with an unelaborated denial of an extraordinary writ petition. Just because neither disposition has any precedential value,[25] nor provides any reason for why we lost, a PCA is a “decision,”[26] whereas an unelaborated denial of a writ is not.[27] A PCA is res judicata and becomes law of the case,[28] whereas an unelaborated denial of a writ is not and does not.[29]
As final food for thought, what about a situation in which an appeal cannot come to fruition — having nothing to do with the personal or financial decisions of the parties? In Jenkins, the defendant, at least, legitimately received two appealable orders and had two opportunities to appeal them.[30] But what about a scenario, for example, where a hearing occurs before a magistrate who takes the matter under advisement and doesn’t rule from the bench. Then, while the magistrate is deliberating, you discover the magistrate should be disqualified and timely file a proper motion, which the magistrate grants and recuses him or herself? We know that under Fischer v. Knuck, 497 So. 2d 240, 243 (Fla. 1986), the disqualified magistrate can’t enter a recommended order at all because he or she never orally ruled from the bench. But instead of getting a successor magistrate and a new trial, the administrative or presiding judge enters an order that retains the disqualified magistrate on the case and won’t reconsider. Because that order is not appealable,[31] you try various extraordinary writ petitions in the district court to rectify it, all of which are met with unelaborated denials, as are the rehearing motions. While there’s been no Finality to keep you out, Discretion still won’t let you have the writ, won’t tell you why, and moreover, doesn’t have to tell you why — because that’s Discretion. So, here you are — no substantive ruling from the magistrate to have reviewed up the chain, and you can’t get a new hearing because you can’t get a new magistrate. At this point, unless the disqualified magistrate who has no jurisdiction[32] (and likely knows that) enters an unauthorized ruling from the prior hearing, you have nothing to appeal, and your case, or a significant part thereof, seems like it may linger in limbo for perpetuity.
As a last resort, you dust off and edit the writ petitions for prohibition and mandamus, already given short shrift in the district court once certiorari was likewise disposed of, and take them up to the Florida Supreme Court. There has never been a decision on the merits by the district court, so the writ petitions could not possibly be deemed “successive,” and Finality would have to let you in, right? Not necessarily. Instead, Finality hands you an order stating, “Once petitioner seeks relief in a particular court by means of a petition for extraordinary writ, he has picked his forum. He is not entitled to a second or third opportunity for the same relief by the same writ in a different court.[33] No motion for rehearing will be entertained by this Court.”
Isn’t this where we came in? Anomalies happen. Knowing that they can makes it even more important to understand and be able to argue the impact that Discretion may have on Finality, including under those unique circumstances in which it could result in no Finality at all.
[1] Jenkins v. Wainwright, 322 So. 2d 477 (Fla. 1975).
[2] Id. at 478.
[3] Id. at 477-78.
[4] Id. at 477.
[5] Id.
[6] Id.
[7] Id.
[8] Id. at 477-78.
[9] Id. at 478.
[10] Id.
[11] Id.
[12] Id. at 477-78.
[13] Id.
[14] Id. at 478.
[15] See id. at 477-79.
[16] See Kent v. Sutker, 40 So. 2d 145, 147 (Fla. 1949) (explaining that “an adjudication on grounds purely technical, where the merits cannot come into question, is limited to the point actually decided, and does not preclude the maintenance of a subsequent action brought in a way to avoid the objection which proved fatal in the first action”).
[17] See State v. Falls Chase Special Taxing Dist., 424 So. 2d 787, 790 n.8 (Fla. 1st DCA 1982); Sumner v. Sumner, 707 So. 2d 934, 935 (Fla. 2d DCA 1998); Smith v. State, 738 So. 2d 410, 412 (Fla. 5th DCA 1999).
[18] See Obanion v. State, 496 So. 2d 977, 980 (Fla. 3d DCA 1986); Hobbs v. State, 689 So. 2d 1249, 1251 (Fla. 4th DCA 1997).
[19] Topps, 865 So. 2d at 1258.
[20] Id.
[21] Id.
[22] Id. at 1257.
[23] See id.
[24] Mathews v. Crews, 132 So. 3d 776, 779 (Fla. 2014).
[25] State Comm’n on Ethics v. Sullivan, 430 So. 2d 928, 932 (Fla. 1st DCA 1983).
[26] Id.
[27] Topps, 865 So. 2d at 1258.
[28] Sullivan, 430 So. 2d at 932.
[29] Topps, 865 So. 2d at 1258.
[30] Jenkins, 322 So. 2d at 477-78.
[31] See Avael L. Firm, PLLC v. Sechrist, 347 So. 3d 424, 427 (Fla. 3d DCA 2022) (“[A]n order that simply denies a motion for reconsideration…of an underlying non-final order…is not in itself an appealable order.” (second and third alterations in original) (emphasis in original) (quoting Samara v. Tenet Fla. Physician Servs., LLC, 317 So. 3d 187, 189 (Fla. 3d DCA 2021)).
[32] See Fischer, 497 So. 2d at 243.
[33] Jenkins, 322 So. 2d at 477.
Doreen Inkeles is board certified in marital and family law and a partner with Shochet Law Group in Trenton where she focuses on family law litigation and appellate matters. She graduated with honors from St. Thomas University College of Law in 1992 and later served on the Marital and Family Law Certification Committee, including as chair from 2019-2020.
This column is submitted on behalf of the Appellate Practice Section, Courtney Brewer, chair, and Sarah Roberge, Benjamin Paley, Matthew Cavender, and Dimitri Peteves, editors.
