US Supreme Court Building

Writs

What is a Writ?

Writs are orders issued by “higher” courts to “lower” courts. When a Florida court issues a writ to a lower court, it is exercising unusual or discretionary power. This is why writs are commonly referred to as “extraordinary” writs. 

Generally speaking, for a court to issue a writ, there must be no alternative relief available (i.e. a direct appeal). 

Five Types Of Writs

Writs include: certiorari, habeas corpus, mandamus, prohibition, and quo warranto. 

In Florida, writs are governed by Rule 9.100 of the Florida Rules of Appellate Procedure.

Writ of Certiorari

This is the most frequently issued writ in Florida. Generally speaking, a writ of certiorari is used to remedy an action taken by a lower tribunal that exceeds the lower tribunal’s authority or otherwise departs from the essential requirements of law, when no other alternative legal remedy exists.

The Florida Supreme Court has no authority to issue writs of certiorari.

District courts of appeal can issue writs of certiorari upon review of:

  1. Non-final circuit court orders not reviewable through Florida Rule of Appellate Procedure 9.130
  2. Final orders of circuit courts sitting in their appellate capacity (second-tier certiorari review)
  3. Non-final orders of state agencies under Florida’s Administrative Procedure Act
  4. Administrative orders entered by the chief judge of the circuit court

One of the most common uses of the writ of certiorari in Florida is to review discovery orders issued by a lower tribunal.

In Sybac Solar v. 6th Street Solar Energy Park of Gainesville, LLC, 217 So. 3d 1068 (Fla. 2d DCA 2017), Mr. Brownlee successfully petitioned the Second District Court of Appeal to quash a discovery order issued by a Polk County court. The opinion and the petition prepared by Mr. Brownlee will help you understand some of the general concepts associated with certiorari litigation.

Circuit courts can also issue writs of certiorari in Florida. Circuit courts have certiorari jurisdiction to review non-final county court orders not reviewable under Rule 9.130, as well as final orders of administrative tribunals that are not governed by Florida’s Administrative Procedure Act. 

A common example of the latter scenario is review of city zoning decisions. Mr. Brownlee obtained a victory for his client, Invictus Development, LLC, after Invictus was approved to build an affordable housing complex in Orlando’s Parramore neighborhood. The case was the subject of intense local media coverage and Mr. Brownlee represented Invictus at the zoning hearings before the city commission. 

After Invictus was granted the zoning it sought by the commission, a challenger petitioned the circuit court in Orlando for a writ of certiorari to quash the commission’s decision.

After Mr. Brownlee prepared a response to the petition on behalf of Invictus, the challenger’s petition was ultimately denied. This spelled victory for Invictus, as well as the residents of Parramore.

Certiorari petitions are due 30 days from the date the order is rendered by the lower tribunal. This is a jurisdictional deadline and it is unforgiving

One important point to keep in mind if you are considering whether to challenge an order by way of certiorari relief: the entire petition - a fully-briefed and exhaustive document – must be filed by the 30-day deadline. 

If you call on day 28, most appellate practitioners will tell you there is no way to competently prepare a certiorari petition in 2 days. At the very least, expect the price for doing so to be steep. 

So you need to act quickly if you want to petition a higher court for a writ of certiorari.

Writ of Habeas Corpus

This writ is used to obtain the release of a person who is being illegally detained. Use of this writ is far less common in Florida than it is in federal courts, but it serves an important purpose. 

It can only be used when resolution would mean the detainee is subject to release or imposition of a different sentence. While the person must be in “custody,” this includes probation - the writ can be issued to free someone from an illegal term of probation, even if the person is not incarcerated. 

The writ can also be used to challenge an order denying, setting, or increasing a defendant’s bail or bond.

One important caveat is that a writ of habeas corpus cannot be used as a second appeal, or to address issues that could have been raised on appeal or in a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. 

A Florida circuit court order resolving a petition for habeas corpus is generally reviewable by appeal to a district court of appeal.  A district court of appeal’s habeas corpus order is only reviewable through the limited jurisdiction of the Florida Supreme Court.

Writ of Mandamus

This writ is used to order a lower tribunal or public official to perform an act or duty that the entity or person is legally obligated to perform.

To prevail, you must be able to show:

  1. a clear and established right to relief;
  2. an indisputable legal duty; and
  3. the lack of an adequate remedy at law.

You must also demand performance from the lower tribunal first.

The most common scenario resulting in issuance of a writ of mandamus is where a lower court is simply not ruling on a motion after a long period of time. See, e.g., Matamoros v. Infinity Auto Ins. Co., 177 So. 3d 682 (Fla. 3d DCA 2015). 

In this scenario, the higher tribunal does not tell the lower court how to rule. It tells the lower court to rule. 

Other examples (this list is non-exhaustive) where issuance of a writ of mandamus would be appropriate include:

  • to compel a lower court to hear a case erroneously dismissed for lack of jurisdiction
  • to compel a public official to issue a license when an applicant has met all the requirements
  • to compel the release of records after a public records request
  • to compel the Department of Corrections to award provisional credits for time served
  • to compel a public defender or court-appointed counsel to produce documents to a criminal inmate

Writ of Prohibition

A writ of prohibition is used to prevent a lower tribunal considering matters not within its jurisdiction.

Typically, the writ is used preventatively, not correctively, and thus is used to prevent further action in excess of jurisdiction, rather than to remedy an error that has already occurred. 

This writ has become useful in a wide variety of scenarios.

  • It can be used to appeal the denial of a motion to disqualify a judge.  See, e.g., Rivera v. Bosque, 188 So. 2d 889 (Fla. 5th DCA 2016).  Mr. Brownlee successfully defended a Petition for Writ of Prohibition that challenged the denial of a motion to recuse a trial judge in Welch v. Welch, 2018 WL 2208216 (Fla. 2d DCA 2018).  Click here to view Mr. Brownlee's response and the opinion affirming the denial of the motion to recuse.
  • It can be used to challenge a state court from adjudicating a matter within the exclusive jurisdiction of federal courts. See, e.g., Pro-Med Clinical Sys., LLC v. Utopia Provider Sys., Inc., 18 So. 3d 1268 (Fla. 4th DCA 2009) 
  • It can even be used to prevent a court from hearing a matter involving church affairs, to preserve the separation between church and state.  For instance, Mr. Brownlee recently prepared a Petition for Writ of Prohibition in the First District Court of Appeal on behalf of a church in such a case, arguing that the “ecclesiastical abstention doctrine” precluded an Alachua County Circuit Court from deciding the matter.

A Petition for a Writ of Prohibition can also be used to enforce statutes of limitation in criminal cases (only), and to challenge an order denying a defense based on Florida’s Stand Your Ground statute. 

Writ of Quo Warranto

This writ is used to determine the right of a person to hold public office or to challenge a public officer’s authority to exercise a right or privilege derived from the state.  This writ is extremely rare and there are only a few Florida cases featuring discussion of quo warranto. 

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