Jones v. State, 64042

Decision Date17 October 1985
Docket NumberNo. 64042,64042
Citation10 Fla. L. Weekly 565,477 So.2d 566
Parties10 Fla. L. Weekly 565 Hollis JONES, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Richard L. Jorandby, Public Defender and Gary Caldwell, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.

Jim Smith, Atty. Gen. and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for respondent.

McDONALD, Justice.

We have for review State v. Jones, 433 So.2d 564 (Fla. 4th DCA 1983). By expressly stating that the state's unavailable appeal would be treated and allowed to be considered as a petition for writ of certiorari, the district court created conflict with State v. G.P., 429 So.2d 786 (Fla. 3d DCA 1983). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and we quash Jones.

The state sought to appeal the dismissal of probation violation charges against Jones, which dismissal had been predicated on Jones' claims of double jeopardy, res judicata, and collateral estoppel. The district court treated the appeal as a petition for certiorari and reversed the trial court's order. * In State v. G.P., on the other hand, the district court held that certiorari review of circuit court judgments extends only to judgments rendered by the circuit courts in their appellate capacity. The question we have to answer, therefore, is whether an appellate court can afford review to the state by way of certiorari when the state has no statutory or other cognizable right to appeal the judgment sought to be reviewed.

We have recently considered that issue. In State v. C.C., 476 So.2d 144 (Fla.1985), we held that article V, section 4(b)(1) of the state constitution permits interlocutory review only in cases in which an appeal may be taken as a matter of right. Moreover, we approved State v. G.P. and held that no right of review by certiorari exists if no right of appeal exists. State v. G.P., 476 So.2d 1272 (Fla.1985). The district court erred in the instant case, therefore, in reviewing by certiorari a case it could not review by appeal. We quash Jones and direct that the petition for writ of certiorari be dismissed.

It is so ordered.

ADKINS, OVERTON, EHRLICH and SHAW, JJ., concur.

BOYD, C.J., concurs specially with an opinion.

BOYD, Chief Justice, concurring specially.

I concur in the holding of the Court that the district court of appeal erred in treating the state's appeal as a petition for certiorari and granting appellate review by means of the common-law writ. As I understand the Court's opinion, it correctly holds that certiorari is not properly issued as an alternate means of granting appellate review when an appeal is not provided for by general law. I write this separate opinion to caution against a possible erroneous interpretation of the Court's decision: it could be read as holding that when there is no appeal available, certiorari is never available. I simply do not believe that by its recent decision in State v. G.P., 476 So.2d 1272 (Fla.1985), this Court intended to overturn many decades of well-established common-law doctrine on the subject of the writ of certiorari.

The principal issue presented by this case is whether a district court of appeal, when it finds that a party seeking to appeal a circuit court judgment or order is not entitled to appeal the judgment or order in question, may simply treat the appeal as a petition for certiorari and, in its discretion, provide appellate review of the judgment or order by means of the writ of certiorari. By its decisions in State v. G.P. and in the present case, this Court correctly answers that question in the negative. But it would be an erroneous misinterpretation of the Court's holding to conclude that when there is no entitlement to an appeal, certiorari is ipso facto not available as a remedy. To the contrary, the lack of an available remedy by appeal is one of the prerequisites to the issuance of the common-law writ of certiorari. The absence of a right to appeal does not preclude resort to certiorari; in fact it is one of the required elements making the aggrieved litigant eligible to seek issuance of the writ.

We accepted jurisdiction of this case primarily because the district court of appeal implicitly acknowledged conflict with the decision of the Third District Court of Appeal in State v. G.P., 429 So.2d 786 (Fla. 3d DCA 1983), which was also brought here for review. In State v. G.P., the Third District, after finding that the state had no right of appeal, held that a district court may not entertain a petition for certiorari to review circuit court judgments rendered in trial court cases but can only provide certiorari review of judgments of circuit courts sitting in their appellate capacity. On review here, this Court approved the holding of the district court that certiorari review was not proper, but did not provide much reasoning or discussion. My understanding of this Court's G.P. decision is that the district court's holding was approved but not necessarily its reasoning. Certiorari review was not available to the state in that case, not because the order of which review was sought was rendered in a trial-court rather than appellate capacity, but because the common-law prerequisites to the issuance of the writ were not satisfied. Without getting into that matter, this Court in G.P. simply approved the district court's denial of resort to the writ under the circumstances of the case. *

With regard to the issue as seen by the district court in G.P., it should be noted that there are many examples of cases in which the Supreme Court, prior to July 1, 1957, and the district courts of appeal from that date to the present, exercised discretionary jurisdiction by common-law certiorari to review orders and judgments of circuit courts sitting as trial courts. E.g., Brooks v. Owens, 97 So.2d 693 (Fla.1957); Flash Bonded Storage v. Ades, 152 Fla. 482, 12 So.2d 164 (1943); Kilgore v. Bird, 149 Fla. 520, 6 So.2d 541 (1942); State ex rel. Bludworth v. Kapner, 394 So.2d 541 (Fla. 4th DCA 1981); State v. Farmer, 384 So.2d 311 (Fla. 5th DCA 1980); State v. Gibson, 353 So.2d 670 (Fla. 2d DCA 1978); State v. Wilcox, 351 So.2d 89 (Fla. 2d DCA 1977); State ex rel. Wainwright v. Booth 291 So.2d 74 (Fla. 2d DCA 1974); State v. Coyle, 181 So.2d 671 (Fla. 2d DCA 1966); Boucher v. Pure Oil Co., 101 So.2d 408 (Fla. 1st DCA 1957). Moreover, numerous other cases in which the writ was denied show that certiorari jurisdiction existed, in that the denials were based on the lack of proper criteria for certiorari and not on the lack of certiorari power. E.g., Basnet v. City of Jacksonville, 18 Fla. 523 (1882); State v. Williams, 237 So.2d 69 (Fla. 2d DCA 1970); Marlowe v. Ferreira, 211 So.2d 228 (Fla. 2d DCA 1968); Gulf Cities Gas Corp. v. Cihak, 201 So.2d 250 (Fla. 2d DCA 1967).

The majority opinion characterizes this Court's decision in State v. G.P. as having held "that no right of review by certiorari exists if no right of appeal exists." This is correct to the extent that it is understood to say that when appellate review is not available, certiorari review may not be made into a substitute therefor, providing an alternate means by which to obtain appellate review. Moreover, certiorari review is never a matter of right. But it should be kept in mind that the common-law writ of certiorari is within the jurisdiction of the district courts of appeal and issuable in the appellate court's discretion under certain circumstances when there is no right of appeal. Indeed, as I have already said, the lack of availability of an appeal or other remedy is one of the prerequisites to the issuance of the writ. It is only when there is no other adequate remedy available that the question of seeking or providing certiorari review arises. If the aggrieved litigant is entitled to appellate review of the judgment or order in question, he has no need for review by certiorari.

The district court of appeal in G.P. sought to place limitations on the use of common-law certiorari out of concern that it could be used to circumvent the law and provide appellate review not authorized by the legislature. As I have already stated, the district court there and this Court on review are correct in holding that certiorari is not properly used as a method of providing unauthorized appellate review. But certiorari is part of jurisdiction of the district...

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    ...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 588 488 So.2d at 877. In Jones v. State, 477 So.2d 566 (Fla.1985), this Court considered t......
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2 books & journal articles
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    • 1 Marzo 2012
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  • An Overview of the "Apex Doctrine" and its Applicability Under Florida Law.
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