Certiorari Review in Florida: When an Appeal Is Not Available

Not every damaging court order can be appealed. Florida law permits appeals from final judgments and from a short list of nonfinal orders identified in Florida Rule of Appellate Procedure 9.130. Everything else, including many of the most consequential rulings a trial court makes, falls outside the right of appeal. For those orders, the petition for writ of certiorari under Rule 9.100 is often the only path to immediate review. Our Miami appellate practice prepares and defends certiorari petitions in the Third District Court of Appeal and in the appellate division of the Eleventh Judicial Circuit.

What Certiorari Is and Where It Fits

Certiorari is an original proceeding, not an appeal. Rule 9.030(b)(2)(A) gives the district courts of appeal certiorari jurisdiction over nonfinal orders of circuit courts that are not appealable under Rule 9.130. Rule 9.030(c)(2) and (c)(3) give the circuit courts certiorari jurisdiction over certain county court orders and over quasi-judicial decisions of local agencies and boards. The mechanics are governed by Rule 9.100.

Because certiorari is discretionary and extraordinary, the reviewing court does not have to hear the case at all. Many petitions are dismissed on jurisdictional grounds before the court ever reaches the merits. The petition itself must persuade the court to act, which makes drafting quality decisive in a way it rarely is in an ordinary appeal.

The Three-Part Standard

A petitioner seeking certiorari from a nonfinal circuit court order must establish three things:

1. Departure from the essential requirements of law: more than ordinary legal error. The trial court must have violated a clearly established principle of law, drawn from statute, rule, or controlling case law.
2. Material injury: the order must cause harm now, in the pending case, rather than a speculative future harm.
3. No adequate remedy on appeal: the injury must be one that a later appeal from the final judgment cannot cure. This element is often called irreparable harm.

The second and third elements are jurisdictional. If the petition does not show irreparable harm that cannot be remedied on plenary appeal, the Third District will dismiss without deciding whether the trial court erred. A well-built petition therefore leads with harm, not with the legal mistake. The applicable standard of review in a certiorari proceeding is far narrower than the de novo or abuse-of-discretion standards that govern most appeals, and the petition must be framed accordingly.

Orders Commonly Reviewed by Certiorari

Certain categories of orders recur in certiorari practice because the harm they cause cannot be undone after final judgment:

• Discovery of privileged material: an order compelling production of attorney-client communications, work product, or trade secrets. Once the material is disclosed, no appellate court can retrieve it. Florida courts describe this as letting the cat out of the bag.
• Financial worth discovery: orders permitting discovery of a defendant's net worth before the court has made the findings required by section 768.72, Florida Statutes, to support a punitive damages claim.
• Disqualification of counsel: orders removing a party's chosen lawyer, which cannot be meaningfully remedied after trial.
• Compelled examinations: orders requiring physical or psychological examinations that exceed the scope of Rule 1.360.
• Denial of arbitration-adjacent or immunity-adjacent rulings that fall outside Rule 9.130's list, where the value of the right lies in avoiding litigation itself.

By contrast, an order that merely increases litigation cost or delay almost never supports certiorari. The expense of an unnecessary trial is not irreparable harm under Florida law.

Certiorari Review of Miami-Dade Quasi-Judicial Decisions

Certiorari also serves as the review mechanism for quasi-judicial decisions of local government. When the Miami-Dade County Commission, a municipal zoning board, or a code enforcement body acts in a quasi-judicial capacity, the aggrieved party's remedy is a first-tier certiorari petition to the appellate division of the Eleventh Judicial Circuit. On first-tier review, the circuit court examines whether procedural due process was afforded, whether the essential requirements of law were observed, and whether the decision is supported by competent substantial evidence.

A party who loses at the first tier may seek second-tier certiorari in the Third District Court of Appeal, but the scope narrows again: the district court asks only whether the circuit court afforded due process and applied the correct law. It will not reweigh the evidence. Because the record on second-tier review is fixed, the hearing before the local board is often the last chance to build the evidentiary case, much as preserving error at trial determines what an appellate court can later consider.

The 30-Day Deadline and a Worked Example

Rule 9.100(c)(1) requires a certiorari petition to be filed within 30 days of rendition of the order to be reviewed. Rendition occurs when a signed, written order is filed with the clerk. The deadline is jurisdictional. The reviewing court cannot extend it, and a petition filed on day 31 will be dismissed regardless of merit. The rule mirrors the 30-day appeal deadline under Rule 9.110, but with a trap: for most nonfinal orders, a motion for rehearing is not authorized and does not postpone rendition. A party who assumes the tolling rules of Rule 1.530 apply to a nonfinal discovery order will usually discover, too late, that the 30 days ran while the rehearing motion sat pending.

A worked example: a Miami-Dade circuit judge signs an order on March 3 compelling a company to produce emails the company contends are attorney-client privileged, and the clerk dockets the signed order the same day. Rendition occurred March 3. The petition must be filed in the Third District Court of Appeal by April 2. Filing a motion for reconsideration in the circuit court on March 10 changes nothing; if the judge has not ruled by April 2, the company must file the petition anyway or lose the right to review.

Procedure Under Rule 9.100

Certiorari procedure differs from an appeal in several practical ways:

• No notice of appeal: the case begins with the petition itself, filed directly in the reviewing court with the filing fee. There is no notice of appeal filed below and no separately prepared record.
• The appendix is the record: under Rules 9.100(g) and 9.220, the petitioner assembles an appendix containing the order, the relevant motions and transcripts, and everything the court needs to rule. Gaps in the appendix are grounds for denial.
• Content and length: Rule 9.100(g) requires the petition to state the basis for jurisdiction, the facts on which the petitioner relies, the nature of the relief sought, and argument with citations. Rule 9.100(l) caps the petition at 9,000 words.
• No response unless ordered: the respondent does not answer unless the court issues an order to show cause under Rule 9.100(h). That order signals the court sees potential merit; the petition alone must earn it.

No Automatic Stay

Filing a certiorari petition does not stop the trial court order from taking effect. A party facing a production deadline or an imminent hearing must seek a stay under Rule 9.310, first in the trial court and then, if denied, in the Third District. In privilege cases, obtaining a stay before the production date is as important as the petition itself, because disclosure moots the harm the petition exists to prevent.

You can contact the Law Offices of Albert Goodwin by phone at 786-522-1411 or by email at [email protected].