Foster v. State
Decision Date | 15 September 2021 |
Docket Number | No. 1D21-664,1D21-664 |
Citation | 326 So.3d 1192 |
Parties | Deryl Nathan FOSTER, Petitioner, v. STATE of Florida, Respondent. |
Court | Florida District Court of Appeals |
Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Petitioner.
Ashley Moody, Attorney General, and Benjamin Louis Hoffman, Assistant Attorney General, Tallahassee; and Melissa Nelson, State Attorney, Jacksonville, for Respondent.
Petitioner was charged with five drug-related felonies and one count of resisting an officer without violence. A search warrant was issued for Petitioner's cell phone. The State sought to compel disclosure of Petitioner's passcode to execute the warrant. Petitioner argued in the trial court that he could not be compelled to provide his passcode because that would violate the Fifth Amendment of the United States’ Constitution.
The trial court granted the State's motion in part. Petitioner now seeks extraordinary relief in this Court by writ of certiorari to quash the trial court's order. We dismiss the petition for lack of jurisdiction because Petitioner has an adequate remedy on plenary appeal.
We note, first, the limits of our jurisdiction. Florida's Constitution provides that district courts have jurisdiction to hear appeals "from final judgments or orders of trial courts , including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court." Art. V, § 4(b)(1), Fla. Const. (emphasis added). As for interlocutory, or non-final, orders, appellate jurisdiction lies only "to the extent provided by rules adopted by the supreme court." Id.
The trial court's order compelling Petitioner to provide the passcode is not a final order, nor is it a non-final order subject to interlocutory review through "rules adopted by the supreme court." Id. Lacking a basis for appellate jurisdiction in this Court, Petitioner seeks to invoke our original jurisdiction to review the underlying order by writ of certiorari.
The supreme court has repeatedly cautioned that certiorari review of interlocutory orders "is an extraordinary remedy that should be granted only in very limited circumstances." Paton v. GEICO Gen. Ins. Co. , 190 So. 3d 1047, 1052 (Fla. 2016). Certiorari jurisdiction thus requires a petitioner to demonstrate the following three elements: (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on post judgment appeal . Bd. of Trs. of Internal Improvement Tr. Fund. v. Am. Educ. Enters., LLC , 99 So. 3d 450, 454 (Fla. 2012) (emphasis added). The second and third elements are "jurisdictional and must be analyzed before the court may even consider the first element ." Williams v. Oken , 62 So. 3d 1129, 1132 (Fla. 2011) (emphasis added) (defendant challenged pre-suit adequacy of medical affidavits in a medical-malpractice action) certiorari review is not available where . Where a person has an adequate remedy on appeal, the district courts lack jurisdiction to consider piecemeal interlocutory appeals. See, e.g. , Paton , 190 So. 3d at 1052.
These jurisdictional prongs exist for good reason. Certiorari review "should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders." Jaye v. Royal Saxon, Inc. , 720 So. 2d 214, 215 (Fla. 1998) (quoting Martin-Johnson, Inc. v. Savage , 509 So. 2d 1097, 1098 (Fla. 1987) ). That is because "piecemeal review of nonfinal trial court orders will impede the orderly administration of justice and serve only to delay and harass." Id. So, "before certiorari can be used to review non-final orders, the appellate court must focus on the threshold jurisdictional question: whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm." Citizens Prop. Ins. Corp. v. San Perdido Ass'n, Inc ., 104 So. 3d 344, 351 (Fla. 2012).
This principle is particularly true in criminal cases, as piecemeal litigation hinders the timely resolution of cases and delays finality. See Art. I, § 21, Fla. Const. ().
Because Petitioner's claim for certiorari relief fails to demonstrate irreparable harm, this Court lacks jurisdiction to grant him the relief he seeks. The Fifth Amendment to the United States’ Constitution provides: "No person ... shall be compelled in any criminal case to be a witness against himself ...." Amend. V, U.S. Const. (emphasis added). This privilege against self-incrimination "is a fundamental trial right of criminal defendants." See U.S. v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (emphasis added). "Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial." Id. ; see also Chavez v. Martinez , 538 U.S. 760, 767, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) ().
Assuming any evidence resulting from the search of the cell phone is admitted at trial over Petitioner's preserved Fifth Amendment objection, or any other preserved objection, and further assuming Petitioner is convicted based on such evidence, Petitioner can raise those arguments on direct appeal. See, e.g. , Almeida v. State, 737 So. 2d 520, 525–26 (Fla. 1999) ( ); Deviney v. State , 112 So. 3d 57, 79 (Fla. 2013) ( ). In addition, Petitioner can file a motion to suppress any inculpatory information obtained from the cell phone, after the State's execution of the search warrant, and can assert that his right to remain silent at trial was violated by the use of any such information. See, e.g. , Cuervo v. State, 967 So. 2d 155, 167 (Fla. 2007) ().
There is nothing prohibiting Petitioner from using his adequate remedy on direct appeal to argue that evidence obtained by use of the passcode could not be legally admitted against him. On plenary appeal, this Court will have jurisdiction to consider these arguments and provide relief, if warranted. See, e.g. , Carter v. State, 697 So. 2d 529, 532, 534 (Fla. 1st DCA 1997) ( ). See also State v. Lemmie, 311 Kan. 439, 462 P.3d 161, 165, 169 (2020) ( ); State v. Johnson, 576 S.W.3d 205, 226–27 (Mo. App. 2019) ( ).
Thus, Petitioner cannot show that we have jurisdiction to consider granting an extraordinary writ of certiorari. Bd. of Trs. , 99 So. 3d at 454 ( ); Magbanua v. State , 281 So. 3d 523, 526 (Fla. 1st DCA 2019) ( ); Segura v. State , 272 So. 3d 805, 806 (Fla. 1st DCA 2019) ( ).
Petitioner relies upon two recent cell phone password cases from this Court to argue jurisdiction is proper. In Pollard v. State , 287 So. 3d 649 (Fla. 1st DCA 2019), review dismissed , No. SC20-110, 2020 WL 1491793 (Fla. Mar. 25, 2020), this court issued a writ of certiorari but did not analyze the threshold question of jurisdiction or a party's available remedy on direct appeal. And in Varn , this Court dismissed a petition for certiorari review and acknowledged the "irreparable harm" requirement but blended its analysis of the merits with its analysis of jurisdiction. Varn v. State , ––– So. 3d ––––, 45 Fla. L. Weekly D2079, 2020 WL 5244807 (Fla. 1st DCA Sept. 3, 2020). Other courts have addressed the merits of the Fifth Amendment issue but declined to explain their jurisdiction. See Garcia v. State, 302 So. 3d 1051, 1054 (Fla. 5th DCA 2020) (, )review granted, No. SC20-1419, 2020 WL 7230441 (Fla. Dec. 8, 2020) ; G.A.Q.L. v. State, 257 So. 3d 1058, 1060 (Fla. 4th DCA 2018) ( ).
Thus, we write to clarify that binding precedent from the supreme court and this Court requires a petitioner to show that he or she has no adequate legal remedy on appeal before this Court can consider his or her petition for writ of certiorari.
In Jaye , the Florida Supreme Court held that the district court lacked jurisdiction to consider the merits of a certiorari petition even where...
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Whitten v. Clark
... ... of jurisdiction. Petitioner fails to show irreparable harm ... See State v. Garcia, 350 So.3d 322, 323 (Fla. 2022) ... (holding that the trial court's order compelling a ... smartphone's passcode did not cause ... the potential material injuries on appeal from the final ... order); Foster v. State, 326 So.3d 1192, 1194-95 ... (Fla. 1st DCA 2021) (holding that the petitioner failed to ... show that he was irreparably ... ...