Which Writ is Which? A Trial Attorney’s Guide to Florida’s Extraordinary Writs
In the course of trial practice, an attorney may receive an interlocutory ruling for which there is no right of immediate appellate review, but without such review, the client’s case is severely prejudiced or even destroyed. If, upon reviewing Florida Rule of Appellate Procedure 9.130, the attorney determines the ruling or action may not be appealed immediately, he or she must then consider whether a petition for an extraordinary writ may provide the necessary relief. This article offers trial practitioners a synopsis of the extraordinary writs most courts use to review interlocutory orders and actions.
Writ of Certiorari
A petition for writ of certiorari is generally used to review 1) quasi-judicial orders of county, municipal, or state agencies that cannot be appealed to the district courts of appeal under the Administrative Procedure Act; 2) orders of circuit courts acting in their appellate capacity; and 3) nonfinal orders of lower tribunals that are not subject to interlocutory appeal under Florida Rule of Appellate Procedure 9.130(a).1 Certiorari is the most frequently used writ to review orders that cannot otherwise be directly appealed to a higher tribunal.
The practitioner should be aware of two initial considerations before filing a petition for writ of certiorari. First, a petition for writ of certiorari filed more than 30 days after the order’s rendition in the lower tribunal will be dismissed for lack of jurisdiction.2 Second, the Florida Constitution does not vest the Florida Supreme Court with jurisdiction to issue writs of certiorari.3
“Quasi-judicial” action occurs when a local agency applies a law or official policy to a controversy. For example, a city or county commission decision on a zoning or development application is a quasi-judicial action subject to review by a writ of certiorari.4 Some statutes also provide for certiorari review of decisions of certain state agencies. For example, F.S. §322.31 (2006) provides that decisions of the Department of Highway Safety and Motor Vehicles that deny, cancel, suspend, or revoke a driver’s license are reviewed by a writ of certiorari.
The procedure for review of such local agency action is governed Florida Rule of Civil Procedure 1.630 because circuit courts, as opposed to district courts of appeal, review local agency action.5 Rules 1.630(b) and (c) provide that a complaint, as opposed to a petition, for writ of certiorari must be filed in the appropriate circuit court within 30 days of the order’s rendition, i.e., when a signed, written order has been filed with the clerk of the agency.6 The practitioner should be aware that motions for rehearing of the agency action may not toll the 30-day jurisdictional time requirement for filing a complaint for a writ of certiorari in the circuit court.7
On certiorari review of a quasi-judicial order of a local agency, the circuit court’s standard of review is limited to determining whether the agency 1) complied with procedural due process, i.e., notice and hearing; 2) observed “the essential requirements of law”; and 3) based its ruling on competent, substantial evidence.8
Review of the circuit court’s decision in a certiorari proceeding involving quasi-judicial local agency action is by filing a petition for writ of certiorari in the appropriate district court of appeal. The district court of appeal’s standard of review is limited to determining whether the circuit court 1) complied with procedural due process requirements and 2) applied the correct law.9 With respect to the latter requirement, however, it is not enough to allege simple or “mere legal error” on the part of the circuit court. Rather, the error must result in a “miscarriage of justice.”10
District courts of appeal review by writ of certiorari decisions of circuit courts acting in their appellate capacity. The aggrieved party must file a petition for writ of certiorari in the appropriate district court within 30 days of rendition of the circuit court appellate order.11 The same narrow standard of review as for circuit court orders involving local agency action, i.e., compliance with procedural due process and application of the essential requirements of the law, governs the district court of appeal’s review of circuit court appellate decisions. Examples of circuit court appellate decisions that have warranted certiorari review by a district court of appeal include orders dismissing an appeal for failure to timely serve a brief;12 applying the incorrect law in granting appellate attorneys’ fees;13 applying the incorrect substantive law on review of a county court’s decision in a criminal matters;14 and reweighing the evidence presented to the lower tribunal.15
Most appellate courts use writs of certiorari to review nonfinal orders not otherwise subject to immediate appeal under Rule 9.130. A petition for writ of certiorari to review such an order must be filed within 30 days of rendition of the lower tribunal’s signed, written order.16
The standard of certiorari review for a nonfinal order of a lower tribunal limits the appellate court to determining whether the order 1) results in material injury throughout the proceeding that cannot be remedied by plenary appeal after final judgment is entered; and 2) departs from the essential requirements of the law.17 The certiorari standard of review eludes precise definition, but several cases attempt to inform the practitioner of what generally constitutes an “irreparable” or “material injury,” or a “departure from the essential requirements of the law.”18 This standard of review requires the practitioner to carefully analyze the reported decisions in factually similar cases to determine whether the appellate courts have previously considered an analogous order “cert worthy.”
Examples of orders that appellate courts have considered on petition for writ of certiorari include discovery orders requiring disclosure of privileged or trade secret information and other confidential information that could injure the party or another outside the context of the litigation;19 orders denying dismissal of actions for failing to comply with statutory presuit notice or screening;20 prejudgment orders finding a party in civil contempt;21 orders on motions to disqualify counsel or to withdraw as counsel because of conflict;22 pretrial orders in criminal cases denying the prosecution’s motions in limine to exclude evidence;23 and pretrial orders in criminal cases denying the prosecution’s motions to take blood, hair, and saliva samples from defendant.24
A complaint for writ of certiorari filed in the circuit court must contain the elements found in Florida Rule of Civil Procedure 1.630(b). A petition for writ of certiorari filed in the district court of appeal must follow the requirements of Florida Rule of Appellate Procedure 9.100(g). Generally, unlike a notice of appeal, a petition for writ of certiorari must set forth the facts and legal authority in support of the requested relief. Further, because no record is transmitted from the lower tribunal to the appellate court, the parties must provide an appendix containing the documents and transcripts filed in the lower tribunal and relied upon in the petition, response, or reply.25 Rules 1.630(d) and (e), and 9.100(h), (j), and (k) provide the requirements for filing a response and reply.
Writ of Prohibition
A writ of prohibition enables an appellate court to prevent a lower tribunal from further exercising jurisdiction in an action. Generally, it cannot be used to remedy an act that has already happened.26 While a petition for writ of prohibition is not subject to the 30-day jurisdictional requirement of Rule 9.100(c), it must be filed in the appellate court having supervisory jurisdiction over the lower tribunal before the action it seeks to prevent has occurred. The content requirement for a petition for writ of prohibition, response, and reply is the same as that required in a certiorari proceeding. An important distinction between the procedure used in prohibition and certiorari proceedings is that an order to show cause issued by the appellate court upon receipt of a petition for prohibition prevents the lower tribunal from conducting further action until the appellate court discharges the writ.27
A petition for writ of prohibition is generally used to challenge the denial of a motion to disqualify the judge of the lower tribunal,28 and to prevent a lower tribunal from exercising its jurisdiction in a matter it has no jurisdiction to decide, e.g., an appellate court exercising jurisdiction where the notice of appeal was untimely filed,29or a court exercising jurisdiction where a statute expressly confers jurisdiction of the matter in a different tribunal.30 In criminal law matters, the writ of prohibition is used, among other things, to protect a criminal defendant’s constitutional right to speedy trial;31 to prevent an accused from being put in double jeopardy when an appeal would not provide full relief;32 and to prevent a criminal prosecution where the statute of limitations has run on the crime.33
Writ of Mandamus
A writ of mandamus compels a lower tribunal or government official to perform a nondiscretionary, ministerial act required by law, which the lower tribunal or official has refused or failed to do.34 For example, writs of mandamus have been used to compel a trial judge to rule on a pending motion;35 to compel a trial judge to submit to a jury issues that are so triable by right;36 and to compel a trial judge to enforce another state’s judgment of child custody.37 Additionally, appellate courts have issued writs of mandamus ordering circuit court clerks to perform ministerial duties such as processing pleadings and documents;38 directing local government officials to comply with zoning ordinances;39 requiring a public agency to follow its own rules;40 and forcing a power company to provide electricity to those entitled to service.41 Finally, writs of mandamus are appropriate to require private corporations and their officers to perform ministerial corporate acts, such as recognizing a stock owner who has paid the requisite consideration or transferring stock to a purchaser.42
As with a petition for writ of prohibition, there is no time requirement for filing a petition for writ of mandamus. Nevertheless, courts will deny the petition if the petitioner unreasonably delays in seeking relief.43 As with the above petitions, the contents and form are governed by Rule 9.100.
Writ of Habeas Corpus
While Florida Rule of Criminal Procedure 3.850 has replaced the writ of habeas corpus in many circumstances, the writ is still widely used to obtain the release of a person who has been illegally detained or restrained.44 A writ of habeas corpus, however, is not a substitute for a direct appeal and is not appropriate to present issues that could have been, should have been, or were raised on direct appeal.45 Most petitions for writs of habeas corpus are filed in proceedings collateral to criminal convictions and detentions.46 Additionally, the legislature has enacted statutes expressly providing habeas corpus as the remedy for individuals involuntarily placed in a mental hospital or in a court-ordered substance abuse treatment facility.47
There is no jurisdictional time limit for filing a petition for writ of habeas corpus. F.S. Ch. 79, Rule 1.630 and Rule 9.100 provide the mechanics for filing a petition for writ of habeas corpus.
Writ of Quo Warranto
A petition for writ of quo warranto is most often filed to challenge an individual’s claim to a public office held by another.48 Quo warranto has also been used to halt a foreign corporation from continuing to do business in the state,49 to revoke a corporation’s charter granted by the state,50 and to contest the governor’s authority to call for more than one special legislative session in a year.51
The procedure for filing a petition for quo warranto is governed by F.S. Ch. 80 (2006) and Rule 9.100. As with most extraordinary writs, except certiorari, there is no jurisdictional time limit for filing a petition for quo warranto.
All Writs Jurisdiction
In addition to their jurisdiction to issue the above writs, the Florida Supreme Court, the district courts of appeal, and circuit courts are constitutionally empowered to issues “all” or “other writs necessary” to complete the exercise of their jurisdiction.52 This power does not permit a court to issue such a writ where it does not otherwise have or will have jurisdiction of the controversy.53 For example, the Florida Supreme Court invoked its all writs jurisdiction, upon petition by the Criminal Rules Committee of The Florida Bar, to suspend the time limits set forth in the criminal rule of procedure and statute governing the time for filing motions for postconviction DNA testing while the court heard argument on the constitutionality of the statute.54 In essence, the court used its all writs jurisdiction to issue a constitutional stay to maintain the status quo while it considered the constitutional questions.55
Before filing a petition for an extraordinary writ, the practitioner should consult the relevant chapters in Florida Appellate Practice (6th ed. 2006), which provide detailed examples of the use of each writ and guide the practitioner through the requirements for filing.
1 Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 843 (Fla. 2001).
2 See Vassell v. Vassell, 892 So. 2d 1128 (Fla. 1st D.C.A. 2004).
3 See Fla. Const. art. V, §3(b). See also Fla. R. App. P.9.030(a)(3); Trepal v. State, 754 So. 2d 702, 706 (Fla. 2000).
4 See G.B.V. Int’l, Ltd., 787 So. 2d 838; Pharmcore, Inc. v. City Of Hallandale Beach,31 Fla. L. Weekly D2671 (Fla. 4th D.C.A., Oct. 25, 2006).
5 Admittedly, some statutes such as §322.31 specify that a petition for writ of certiorari to the circuit court shall be made in the time and manner specified by the Florida Rules of Appellate Procedure. It would appear that the procedural Rule 1.630 would take precedence over the statute. See Fla. Const. art. II, §3; art. V, §2(a). See also State v. Raymond, 906 So. 2d 1045, 1048 (Fla. 2005).
6 See Fla. R. App. P. 9.020 (b) and (h) (defining “clerk” and “rendition”).
7 See generally Charles A. Stampelos, Administrative Appeals, Florida Appellate Practice §8.12 (6th ed. 2006).
8 City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).
9 Pharmcore, Inc., 31 Fla. L. Weekly D2671.
10 County of Volusia v. City of Deltona, 925 So. 2d 340, 343 (Fla. 5th D.C.A. 2006).
11 Fla. R. App. P. 9.100(c)(1).
12 See Lindsey v. King, 894 So. 2d 1058 (Fla 1st D.C.A. 2005).
13 See Progressive Express Ins. Co. v. Physician’s Injury Care Ctr., Inc., 906 So. 2d 1125 (Fla. 5th D.C.A. 2005); Bottcher v. Walsh, 834 So. 2d 183 (Fla. 2d D.C.A. 2002).
14 See Stambaugh v. State, 891 So. 2d 1136 (Fla. 4th D.C.A. 2005).
15 See Netz v. Jacksonville Sheriff’s Office, 668 So. 2d 235 (Fla. 1st D.C.A. 1996).
16 Fla. R. App. P. 9.100(c)(1).
17 Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995).
18 See, e.g., Jaye v. Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla. 1998); Langston, 655 So. 2d at 94; Cotton States Mut. Ins. Co. v. D’Alto, 879 So. 2d 67 (Fla. 1st D.C.A. 2004); Parkway Bank v. Ft. Myers Armature Works, Inc., 658 So. 2d 646 (Fla. 2d D.C.A. 1995).
19 See Langston, 655 So. 2d at 94.
20 See Cent. Fla. Reg’l Hosp. v. Hill, 721 So. 2d 404 (Fla. 5th D.C.A. 1998); Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So. 2d 1376 (Fla. 4th D.C.A. 1997).
21 See Stewart v. Mussoline, 487 So. 2d 96 (Fla. 3d D.C.A. 1986).
22 See Filan v. State, 720 So. 2d 549 (Fla. 4th D.C.A. 1998).
23 See State v. Cruz, 851 So. 2d 249 (Fla. 3d D.C.A. 2003).
24 See State v. McCord, 828 So. 2d 458 (Fla. 4th D.C.A. 2002).
25 See Fla. R. Civ. P.1.630(b); Fla. R. App. P.9.100(g), (i), (j), (k); Fla. R. App. P. 9.220.
26 See English v. McCrary, 348 So. 2d 293, 297 (Fla. 1977).
27 See Fla. R. App. P.9.100(h).
28 See Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978); Holmes v. Goldstein. 650 So. 2d 87 (Fla. 4th D.C.A. 1995).
29 See Peltz v. Dist. Court of Appeal, Third Dist., 605 So. 2d 865 (Fla. 1992).
30 See Dep’t of Agric. & Consumer Servs. v. Bonanno, 568 So. 2d 24 (Fla. 1990).
31 See Sherrod v. Franza, 427 So. 2d 161 (Fla. 1983).
32 See Strawn v. State ex rel. Anderberg, 332 So. 2d 601 (Fla. 1976); State ex rel. Pope v. Joanas, 278 So. 2d 305 (Fla. 1st D.C.A. 1973).
33 See Carcaise v. Durden, 382 So. 2d 1236 (Fla. 5th D.C.A. 1980).
34 See City of Miami Beach v. Mr. Samuel’s, Inc., 351 So. 2d 719 (Fla. 1977); Lake County Comm’rs v. State, 4 So. 795 (Fla. 1888).
35 See A.B.C. Business Forms, Inc. v. Spaet, 201 So. 2d 890 (Fla. 1967).
36 See Sarasota-Manatee Airport Auth. v. Alderman, 238 So. 2d 678 (Fla. 2d D.C.A. 1970).
37 See Yon v. Fleming, 595 So. 2d 573 (Fla. 4th D.C.A. 1992).
38 See Graham v. Rutherford, 901 So. 2d 412 (Fla. 1st D.C.A. 2005); Tucker v. Ruvin, 748 So. 2d 376 (Fla. 3d D.C.A. 2000).
39 See Lamphear v. Wiggins, 546 So. 2d 1183 (Fla. 5th D.C.A. 1989).
40 See Williams v. James, 684 So. 2d 868 (Fla. 2d D.C.A. 1996).
41 See Fla. Power & Light Co. v. State ex rel. Malcolm, 144 So. 657 (Fla. 1932).
42 See Faro v. Simplex Med. Sys., Inc., 748 So. 2d 342 (Fla. 3d D.C.A. 1999); Mixson v. First Nat’l Bank of Miami, 136 So. 258 (Fla. 1931).
43 See Alma’s Italian & Seafood Rest. v. Jones, 627 So. 2d 605 (Fla. 1st D.C.A. 1993).
44 See Thomas v. Dugger, 548 So. 2d 230 (Fla. 1989).
45 See Herndon v. State, 796 So. 2d 534 (Fla. 2001).
46 See, e.g., Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000) (alleging ineffective assistance of appellate counsel); State ex rel. Hanks v. Goodman, 253 So. 2d 129 (Fla. 1971) (challenging existence of probable cause for detention).
47 See, e.g., Fla. Stat. §394.459(8) (2006) (involuntary placement in mental hospital); Fla. Stat. §397.501(9) (2006) (court-ordered placement in substance abuse treatment facility).
48 See, e.g., McPherson v. Flynn, 397 So. 2d 665 (Fla. 1981); see also Fla. Stat. Ch. 80 (2006) (governing quo warranto proceedings to challenge individual’s claim to public office).
49 See State ex rel. Landis v. S.H. Kress & Co., 155 So. 823 (Fla. 1934).
50 See Fla. Stat. §545.08 (2006).
51 See Martinez v. Martinez, 545 So. 2d 1338 (Fla. 1989).
52 Fla. Const. art. V, §§3(b)(7), 4(b)(3), 5(b); Fla. R. App. P. 9.030(a)(3), (b)(3), (c)(3).
53 See, e.g., Florida Senate v. Graham, 412 So. 2d 360 (Fla. 1982).
54 See Amendments to Florida Rule of Criminal Procedure 3.853(d)(1)(A) (Postconviction DNA Testing), 857 So. 2d 190 (Fla. 2003).
55 See also Petit v. Adams, 211 So. 2d 565 (Fla. 1968) (issuing stay pursuant to all writs jurisdiction to prevent Dade County Canvassing Board from erasing counters on voting machines while court considered petition for writ of mandamus to require the board to examine counters).