State v. Pettis

We review State v. Pettis, 488 So.2d 877 (Fla. 4th DCA 1986), because of direct and express conflict with State v. Wilson, 483 So.2d 23 (Fla. 2d DCA 1985). Art. V, § 3(b)(3), Fla. Const.

Pettis was charged with a drug offense. The state made a pretrial motion to prevent Pettis from questioning a police officer at the trial about five departmental reprimands he had received. The reprimands had occurred during the officer’s former employment with another police force, and the most recent of them had taken place about three years earlier. None of the reprimands involved Pettis or anyone connected with him. Upon the denial of the motion in limine, the state filed a petition for writ of certiorari. The Fourth District Court of Appeal granted certiorari and quashed the order denying the state’s motion in limine. In its opinion, the district court held that Pettis could not use evidence of the officer’s prior reprimands to impeach his character for truthfulness because the officer’s character trait was not an essential element of the charge or defense. § 90.405(2), Fla.Stat. (1983). The court pointed out that Pettis had not defended on the ground that the officer had an interest, bias or motive to lie as did the defendants in Mendez v. State, 412 So.2d 965 (Fla. 2d DCA 1982), and D.C. v. State, 400 So.2d 825 (Fla. 3d DCA 1981).

Pettis filed a motion for rehearing, asserting that because the state could not appeal the order denying the motion in limine, it had no authority to seek review of the order by petition for common law cer-tiorari. As a consequence, the district court of appeal on rehearing withdrew its prior opinion and stated:

The petition for writ of certiorari is denied upon authority of Jones v. State, 477 So.2d 566 (Fla.1985). See also R.L.B. v. State, 486 So.2d 588 (Fla.1986).

488 So.2d at 877.

In Jones v. State, 477 So.2d 566 (Fla.1985), this Court considered the question of whether the district court of appeal could entertain a petition for certiorari from an order challenging the dismissal of probation violation charges. We reasoned that since there was no statutory right of appeal from the dismissal of probation violation charges, the district court could not review the dismissal by way of certiorari.

Subsequent to Jones, the Second District Court of Appeal entertained a petition for certiorari to review an order denying the state’s motion to exclude certain evidence from the defendant’s criminal trial. Just as in Pettis, the district court was faced with the question of whether it had authority to grant certiorari to review the denial of the state’s pretrial motion in limine. Concluding that it had such authority, the district court reasoned:

Since the time the state filed its petition, and respondents responded, the supreme court issued its decisions in Jones v. State, 477 So.2d 566 (Fla.1985); State v. G.P., 476 So.2d 1272 (Fla.1985); and State v. C.C., 476 So.2d 144 (Fla.1985), which appear to hold that the state may not seek certiorari review of any interlocutory or final order for which a statutory right to appeal has not been granted. We, however, read the decisions to mean that the state may not use the petition for writ of common law certiorari to obtain appellate review of an order that is only reviewable, if at all, by direct appeal. If there is no statutory right to appeal, then certiorari cannot be used to supply the right. On the other hand, we do not believe the above decisions preclude the state from seeking common law certiorari review, as opposed to statutory appellate review, of an interlocutory order (such as the denial of its motion in limine in this ease) which departs from the essential requirements of law and for which the state would have no other avenue of review.

State v. Wilson, 483 So.2d at 24-25. We agree with this analysis.

The right of appeal from a final judgment is prescribed by statute. State v. Creighton, 469 So.2d 735 (Fla.1985). The cases of State v. C.C., 476 So.2d 144 (Fla.1985), State v. G.P., 476 So.2d 1272 (Fla.1985), and Jones v. State, 477 So.2d 566 (Fla.1985), were each concerned with the review of final orders of dismissal from which there was no statutory right of appeal. Those decisions were bottomed on the premise that the state should not be permitted to circumvent the absence of a statutory right of appeal through the vehicle of a petition for certiorari.

The orders involved in Pettis and Wilson were nonfinal orders. The review of nonfi-nal orders is controlled by court rule. State v. Smith, 260 So.2d 489 (Fla.1972). State appeals from certain nonfinal orders are authorized by Florida Rule of Appellate Procedure 9.140(c)(1)(B). With respect to common law certiorari, Florida Rule of Appellate Procedure 9.030(b)(2) provides in part:

(2) Certiorari Jurisdiction. The cer-tiorari jurisdiction of district courts of appeal may be sought to review:

(A) non-final orders of lower tribunals other than as prescribed by Rule 9.130;

The reference to rule 9.130 is not inadvertent because the orders covered by that rule are ones from which an interlocutory appeal may be taken as contrasted to a petition for certiorari. Subsection (a)(2) of rule 9.130 excludes nonfinal orders in criminal cases. The committee note under rule 9.130 states:

1977 Revision. This rule replaces former Rule 4.2 and substantially alters current practice. This rule applies to review of all non-final orders, except those entered in criminal cases, and those specifically governed by Rules 9.100 and 9.110.

The Advisory Committee was aware that the common law writ of certiorari is available at any time and did not intend to abolish that writ. However, since that writ provides a remedy only where the petitioner meets the heavy burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm, it is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari. It is anticipated that since the most urgent interlocutory orders are appealable under this rule, there will be very few cases where common law certiorari will provide relief. See Taylor v. Board of Public Instruction of Duval County, 131 So.2d 504 (Fla. 1st DCA 1961).

The right of district courts of appeal to review nonfinal orders in criminal cases by certiorari was recognized in dictum by this Court in State v. Harris, 136 So.2d 633 (Fla.1962). Several years later in State v. Smith the question was directly presented. In that case, the Court upheld the district court’s reasoning that the state could not appeal a pretrial order requiring an eyewitness to a murder to be examined for visual acuity. However, the district court had treated the interlocutory appeal as a petition for writ of common law certiorari, and this Court reversed the denial of that petition on the premise that the trial judge’s order had departed from the essential requirements of law.

In State v. Steinbrecher, 409 So.2d 510 (Fla. 3d DCA 1982), the Third District Court of Appeal specifically addressed this question in the following manner:

Respondent argues that there is no authority for certiorari review of a pretrial ruling excluding evidence. We disagree. Rule 9.140(c) of the Florida Rules of Appellate Procedure does limit matters which may be appealed by the state before trial as of right. However, this limitation as to appeals is not a bar to this court’s power of discretionary review. ...

We believe, therefore, that the correct interpretation of Florida law is that if the requirements permitting certiorari jurisdiction otherwise exist, a pre-trial order excluding evidence which has the effect of substantially impairing the ability of the state to prosecute its case is subject to certiorari review.

409 So.2d at 511.

In many other cases the district courts of appeal have granted common law certiorari to quash nonappealable interlocutory orders in criminal cases which departed from the essential requirements of law. E.g., State v. Edwards, 490 So.2d 235 (Fla. 5th DCA 1986); State v. Maisto, 427 So.2d 1120 (Fla. 3d DCA 1983); State v. Busciglio, 426 So.2d 1233 (Fla. 2d DCA 1983); State v. Joseph, 419 So.2d 391 (Fla. 3d DCA 1982); State v. Horvatch, 413 So.2d 469 (Fla. 4th DCA 1982); State v. Love, 393 So.2d 66 (Fla. 3d DCA 1981); State v. Dumas, 363 So.2d 568 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 471 (Fla.1979); State v. Latimore, 284 So.2d 423 (Fla. 3d DCA 1973), cert. denied, 291 So.2d 7 (Fla.1974); State v. Gillespie, 227 So.2d 550 (Fla. 2d DCA 1969); State v. Williams, 227 So.2d 253 (Fla. 2d DCA 1969), cert. denied, 237 So.2d 180 (Fla.1970).

The ability of the district courts of appeal to entertain state petitions for cer-tiorari to review pretrial orders in criminal cases is important to the fair administration of criminal justice in this state. Otherwise, there will be some circumstances in which the state is totally deprived of the right of appellate review of orders which effectively negate its ability to prosecute. If a nonfinal order does not involve one of the subjects enumerated in Florida Rule of Appellate Procedure 9.140(c)(1), the state would not be able to correct an erroneous and highly prejudicial ruling. Under such circumstances, the state could only proceed to trial with its ability to present the case significantly impaired. Should the defendant be acquitted, the principles of double jeopardy prevent the state from seeking review; thus, the prejudice resulting from the earlier order would be irreparable. The filing of a petition for certiorari is an apt remedy under these circumstances. Only those are granted in which the error is serious. Very little delay is involved because the petitions are usually denied on their face as not demonstrating a departure from the essential requirements of law. In fact, it would be counterproductive for the state to have a full right of interlocutory appeal from all pretrial orders because this would mean the district court of appeal would have to entertain the appeal on its merits which would often result in unnecessary delay.

Our statements in State v. C.C., State v. G.P., and Jones v. State that no right of review by certiorari exists in criminal cases if no right of appeal exists are limited to orders of final dismissal. These cases shall not be construed to prohibit district courts of appeal from entertaining state petitions for certiorari from pretrial orders in criminal cases.

We agree that the trial judge below erred in permitting the police officer to be questioned concerning unrelated reprimands. See A. McD. v. State, 422 So.2d 336 (Fla. 3d DCA 1982); Morrell v. State, 297 So.2d 579 (Fla. 1st DCA 1974). However, we cannot say that the ruling was a departure from the essential requirements of law. While some pretrial evidentiary rulings may qualify for certiorari, it must be remembered that the extraordinary writ is reserved for those situations where “there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 96 (Fla.1983). Therefore, we approve the denial of the petition for certio-rari but not upon the reasoning implicit in its rehearing order.

It is so ordered.

EHRLICH, BARKETT and KOGAN, JJ., concur.

OVERTON, J., concurs in result only with an opinion.

McDONALD, C.J., concurs in result only.

SHAW, J., dissents with an opinion.

. The authority of the district courts of appeal to issue writs of certiorari is derived from article V, section 4(b)(3) of the Florida Constitution.

. The defendant does not suffer the same prejudice because he always has the right of appeal from a conviction in which he can attack any erroneous interlocutory orders.

. From a practical standpoint, the state’s ability to seek review of pretrial rulings by petition for certiorari may also inure to the benefit of some defendants. If the rule were otherwise, a trial judge, aware of the precariousness of the state’s position, might decide to resolve all doubts in favor of the prosecution on the premise that the defendant can always have the action reviewed while the state cannot. Of course, the judge’s order would ultimately come to the appellate court with a presumption of correctness. Therefore, the defendant could be prejudiced because the judge was bending over backward to keep from foreclosing the state’s remedies.

.Of course, the district courts of appeal also have jurisdiction to review by certiorari final orders of circuit courts acting in their review capacity. Fla.R.App.P. 9.030(b)(2)(B).

. In view of the nature of certain of the police officer’s reprimands which Pettis proposed to introduce, we do not agree with Justice Shaw that the trial judge’s ruling was in direct conflict with an existing appellate decision.