Kimberly Jordan v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D22-2960
_____________________________
KIMBERLY JORDAN,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
_____________________________
Petition for Writ of Certiorari—Original Jurisdiction.
Joshua M. Hawkes, Judge.
September 27, 2022
LONG, J.
Petitioner seeks review of an order denying the public
defender’s (PD) motion to withdraw. The motion turned on a
purported conflict between the representation of Petitioner and
the PD’s prior representation of a potential state witness. We
dismissed the petition in a summary order, and now explain why.
The PD has been representing the Petitioner in an ongoing
proceeding since March 2022. The PD also represented a potential
state witness several years ago. The potential state witness’s
involvement in Petitioner’s case was known to the PD in March
when representation began. The PD participated in discovery,
refused to waive speedy trial, and twice represented to the trial
court that the PD was ready for trial. The PD’s lengthy
representation of Petitioner was apparently serious, strategic, and
substantive. It involved the provision of counsel through decisions
that resulted in consequential changes to the case’s legal and
procedural posture. The trial court noted the speedy trial decision
led to the state ending plea negotiations and moving to classify
Petitioner as a habitual felony offender. The decision also put the
trial court in a pinch. The trial court had a multi-week murder
trial which presented a timing challenge. After the court was able
to make adjustments and set Petitioner’s trial within the speedy
trial recapture period, the PD moved to withdraw.
The trial court then conducted a hearing on the motion to
withdraw under section 27.5303, Florida Statutes. That provision
governs conflicts of interest for public defenders. Among other
things, the provision sets out a process for evaluating potential
conflicts and assigns responsibilities to the public defender and the
court. § 27.5303(1)(e), Fla. Stat. (“In determining whether or not
there is a conflict of interest, the public defender . . . shall apply
the standards contained in the Uniform Standards for Use in
Conflict of Interest Cases.”); § 27.5303(1)(a), Fla. Stat. (“The court
shall deny the motion to withdraw if the court finds the grounds
for withdrawal are insufficient or the asserted conflict is not
prejudicial to the indigent client.”).
At the hearing, which occurred less than a week before the
specially set trial, the PD sought a continuance while still
declining to waive speedy trial. After the hearing, the trial court
entered a thoughtful and detailed order. The trial court found that
the motion to withdraw failed to establish a conflict and, even if it
had, the PD had failed to take reasonable steps to explore
alternatives to withdrawal. § 27.5303(1)(e)1., Fla. Stat. (“[T]he
public defender . . . must[] [d]etermine if there is a viable
alternative to withdrawal from representation which would
remedy the conflict of interest and, if it exists, implement that
alternative.”). The trial court then denied the motion. Petitioner
now asks this Court to stay the proceedings and review the trial
court’s order.
As always, we first determine whether we have jurisdiction to
address the issue. We have jurisdiction to review final orders and
specific nonfinal orders designated by the Florida Supreme Court.
2
Art V, § 4(b)(1), Fla. Const. The trial court’s order here is nonfinal
because it does not act as “an end to the judicial labor in the cause.”
Augustin v. Blount, Inc., 573 So. 2d 104, 105 (Fla. 1st DCA 1991).
And an order denying a motion to withdraw is not among the
appealable nonfinal orders in the appellate rules. Fla. R. App. P.
9.130. We therefore cannot hear Petitioner’s argument on the
merits as an authorized appeal.
We instead are limited to the stringent review standard of
common law certiorari. To obtain relief by certiorari, the order on
review must depart from the essential requirements of the law and
cause harm 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). The correctability is a
jurisdictional question. See CVS Caremark Corp. v. Latour, 109
So. 3d 1232, 1234 (Fla. 1st DCA 2013) (explaining that the
irreparable harm inquiry is jurisdictional). This certiorari
jurisdictional evaluation is meant to discourage piecemeal review.
Cotton States Mut. Ins. v. D’Alto, 879 So. 2d 67, 69 (Fla. 1st DCA
2004).
The petition for writ of certiorari must show how the error
below cannot be corrected on post-judgment appeal. Agency for
Health Care Admin. v. S. Broward Hosp. Dist., 206 So. 3d 826, 828
(Fla. 1st DCA 2016) (“From a practical standpoint, this standard
requires the petition to clearly reflect how the potential ‘harm is
incurable’ by a final appeal.” (emphasis in original) (quoting Bared
& Co., Inc. v. McGuire, 670 So. 2d 153, 157 (Fla. 4th DCA 1996)).
A petition for certiorari must be dismissed when it fails to “explain
why appellate review of the final judgment would not provide an
adequate remedy.” Landmark at Crescent Ridge LP v. Everest
Fin., Inc., 219 So. 3d 218, 220 (Fla. 1st DCA 2017); see also
Magbanua v. State, 281 So. 3d 523, 527 (Fla. 1st DCA 2019)
(holding that a certiorari petitioner must demonstrate that “any
material injury she may suffer could not be corrected on direct
appeal”).
3
Far from providing a clear explanation, the petition here does
not even discuss irreparable harm. It makes no argument on this
critical preliminary question. Because Petitioner has failed to
show how a post-judgment appeal could not correct the alleged
error, we dismiss the petition for lack of jurisdiction.
DISMISSED.
JAY, J., concurs; LEWIS, J., dissents without opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Jessica J. Yeary, Public Defender, and John Knowles, Assistant
Public Defender, Tallahassee, for Petitioner.
Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau
Chief, Tallahassee, for Respondent.
4