Certiorari is the appellate system’s safety valve. It is the way a higher court can step in when there is no appeal as of right but a lower tribunal has gone wrong in a way that cannot wait or cannot be undone later. In criminal and DUI practice it shows up in two main places: review of certain non-final orders, and review of administrative action like a DHSMV license suspension. The common-law writ of certiorari is held by the District Courts of Appeal and the circuit courts. See Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995).
It is deliberately hard to get. The Florida Supreme Court has called it an extraordinary remedy, not a second appeal, as recognized in M.M. v. Department of Children and Families, 189 So. 3d 134 (Fla. 2016), and the standard is higher than ordinary appellate review. That is the point: certiorari fills the gaps the appeal system leaves, rather than offering a second run at every adverse order.
The Three Things a Petition Must Show
A court will grant certiorari only when all three of these are present, and the last two are jurisdictional. See Keck v. Eminisor, 104 So. 3d 359 (Fla. 2012).
| Element | What it means |
|---|---|
| Departure from the essential requirements of law | More than ordinary legal error; a violation of a clearly established principle of law |
| Material injury | Real harm to the party from the order under review |
| No adequate remedy on appeal | The harm cannot be repaired by a later appeal from the final judgment |
I started out as an Assistant Public Defender in Florida’s Thirteenth Judicial Circuit, in Tampa, and I am a trial lawyer first. I handle the post-trial and post-conviction work that grows out of that practice: motions to withdraw a plea, motions to correct an illegal sentence or to reduce a sentence, restitution hearings, petitions for writ of habeas corpus and other writs, and certiorari review of a DHSMV license suspension. The one thing I do not take on is the full direct appeal, the kind that lives or dies on a long brief, so when a case belongs in the circuit court appellate division or a District Court of Appeal on the merits, I refer it to appellate counsel I trust. Learn more about my background.
When Certiorari Is the Right Tool
Most non-final orders are not reviewable by certiorari, because courts do not want piecemeal, mid-case appeals. The writ is reserved for the orders where waiting until the end would be too late. A classic example is a discovery order that would require disclosing privileged or protected material, where once the information is out the harm cannot be undone. General complaints that a ruling is wrong, or that a trial will be costly, do not qualify.
The other main use is review of administrative action. When an agency such as the Department of Highway Safety and Motor Vehicles enters a final order, certiorari to the circuit court is how that decision is reviewed, which is the path described on the DHSMV formal review appeals page.
First-Tier and Second-Tier Review
There are two layers, and they are not the same. First-tier certiorari is the circuit court reviewing an agency decision, where it asks whether due process was given, whether the essential requirements of law were observed, and whether competent, substantial evidence supports the findings. Second-tier certiorari is the District Court of Appeal reviewing the circuit court’s decision, and it is narrower still.
At the second tier the court looks only at whether the lower court afforded procedural due process and applied the correct law. See Allstate Insurance Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003). The competent-evidence question drops out, and relief is reserved for a violation of a clearly established principle of law that causes a miscarriage of justice. Understanding which tier a case is on, and what that tier can reach, decides whether a petition is worth filing.
How I Use Certiorari
In practice this comes up most in one place I handle directly: certiorari review of a DHSMV formal review order, which is the license appeal described on its own page. It can also reach a non-final order that would cause harm a later appeal could not fix, though those are uncommon. Where a certiorari matter turns into a complex merits brief better suited to an appellate court, I coordinate with appellate counsel rather than treat it as a do-it-all proceeding.
Common Questions
What is a petition for writ of certiorari?
It is a request asking a higher court to review an order when there is no appeal as of right. It is used for certain non-final orders that cause harm an appeal could not undo, and for review of administrative action such as a DHSMV license suspension. It is an extraordinary remedy, not a second appeal.
What does a court look for on certiorari?
Three things, set out in Keck v. Eminisor: a departure from the essential requirements of the law, that causes material injury, which cannot be adequately remedied on appeal after final judgment. The last two are jurisdictional, so without irreparable harm a court will not even reach the merits.
When is certiorari the right tool?
When the harm cannot wait for the end of the case or cannot be fixed later, for example certain discovery orders that would disclose privileged material, or when the law provides for certiorari review of an agency decision like a license suspension. Most non-final orders are not reviewable this way, which is why the remedy is narrow.
What is the deadline?
Generally thirty days from the rendition of the order under Florida Rule of Appellate Procedure 9.100, and it is jurisdictional. Because the window is short and the standard is demanding, certiorari is a tool that rewards moving quickly and choosing the issue carefully.
What is second-tier certiorari?
It is review of a decision by a court that was itself acting in an appellate role, such as a circuit court that reviewed an agency. It is limited to whether that court afforded due process and applied the correct law, as recognized in Allstate Insurance Co. v. Kaklamanos, and it is not a second appeal of the facts.
Related: Appeals overview, DHSMV formal review appeals, Postconviction relief and writs, Challenging a search or stop, and About Rory Safir.
This page is general information about Florida law, not legal advice, and it does not create an attorney-client relationship. Post-trial and appellate deadlines are strict and often jurisdictional, so confirm anything here against the current rules and statutes and speak with counsel promptly. Full direct appeals that require briefing are referred to appellate counsel. Every case is different, and past results do not guarantee a similar outcome.
