Third District Court of Appeal
State of Florida
Opinion filed April 13, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-509
Lower Tribunal No. 09-15874 B
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Stevenson Charles,
Petitioner,
vs.
The State of Florida,
Respondent.
On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, Stephen T. Millan, Judge.
Terence M. Lenamon, P.A. and Terence M. Lenamon and Daniel J.
Schwarz, for petitioner.
Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney
General, for respondent.
Before SUAREZ, C.J., and WELLS and SHEPHERD, JJ.
ON PETITION FOR CERTIORARI
SUAREZ, C.J.
Stevenson Charles seeks certiorari review of the trial court’s order denying
his motion for protective order in which he asked the court to preclude the
compelled disclosure of any and all reports and findings from any and all tests that
may be conducted by non-testifying defense forensic experts. Charles seeks to
have any anticipated test findings and reports shielded from required disclosure to
the State because, he argues, such compelled disclosure would violate his rights to
effective assistance of counsel under the Sixth Amendment.1 The circuit court
order deferred ruling on this discovery issue until after the tests at issue are
completed and the court has had an opportunity to review the reports in camera.
We dismiss the petition as the defendant cannot show that this order is a departure
from the law resulting in irreparable harm.
Certiorari is an extraordinary remedy that is available only in limited
circumstances. Certiorari is not a substitute for an appeal. See Cotton States Mut.
Ins. v. D'Alto, 879 So. 2d 67 (Fla. 1st DCA 2004). As the Florida Supreme Court
has explained, “‘certiorari is an extraordinary remedy and [it] should not be used to
circumvent the interlocutory appeal rule which authorizes appeal from only a few
types of non-final orders.’” Belair v. Drew, 770 So. 2d 1164, 1166 (Fla. 2000)
(quoting Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1098 (Fla. 1987)). This
Court may grant a petition for certiorari “only when the petitioner establishes (1) a
departure from the essential requirements of the law, (2) resulting in material
injury for the remainder of the trial (3) that cannot be corrected on post-judgment
appeal.” Capital One, N.A. v. Forbes, 34 So. 3d 209, 212 (Fla. 2d DCA 2010).
1 See Florida Rule of Criminal Procedure 3.220(d)(1)(B)(ii).
2
First, this Court examines prongs two and three to determine its certiorari
jurisdiction. Holden Cove, Inc. v. 4 Mac Holdings Inc., 948 So. 2d 1041 (Fla. 5th
DCA 2007); Barker v. Barker, 909 So. 2d 333 (Fla. 2d DCA 2005). If
jurisdictional prongs two and three are not fulfilled, this Court should dismiss the
petition rather than deny it. Capital One, N.A., 34 So. 3d at 212. See also
Travelers Indem. Co. v. Fields, 262 So. 2d 222, 224 (Fla. 1st DCA 1972)
(certiorari review premature on discovery issue where the trial court had not yet
conducted in camera review); Southern Baptist Hosp. of Florida, Inc. v. Charles,
178 So. 3d 102, 107 (Fla. 1st DCA 2015) (certiorari review should not promote
piecemeal review of non-final trial court orders). These general principles
governing the use of certiorari apply in criminal cases as well as civil cases. See
State v. Pettis, 520 So. 2d 250 (Fla. 1988).
Here the trial court has not ruled on the discovery issue. The trial court’s
order merely defers ruling on the discovery issue until such time as the reports at
issue are completed and the court has had an opportunity to review the materials in
camera. Then the trial court will make a ruling. The trial court’s ruling is not a
departure from the essential requirements of the law and does not result in material
injury that the defendant cannot correct on appeal. Therefore, there is no basis
upon which to issue a writ of certiorari.
Petition dismissed.
3