Which writ is which? A trial attorney's guide to Florida's extraordinary writs.

• Author: Hendricks, Valeria

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 Local Agency Action

"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. [section] 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)

* Orders of Circuit Courts Acting in Their Appellate Capacity

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)

* Nonfinal Orders Not Subject to Review Pursuant to Rule 9.130

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...