       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 13, 2016.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D16-509
                        Lower Tribunal No. 09-15874 B
                             ________________


                             Stevenson Charles,
                                    Petitioner,

                                        vs.

                            The State of Florida,
                                   Respondent.

     On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, Stephen T. Millan, Judge.

     Terence M. Lenamon, P.A. and Terence M. Lenamon and Daniel J.
Schwarz, for petitioner.

     Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney
General, for respondent.


Before SUAREZ, C.J., and WELLS and SHEPHERD, JJ.

                         ON PETITION FOR CERTIORARI

     SUAREZ, C.J.

     Stevenson Charles seeks certiorari review of the trial court’s order denying

his motion for protective order in which he asked the court to preclude the
compelled disclosure of any and all reports and findings from any and all tests that

may be conducted by non-testifying defense forensic experts. Charles seeks to

have any anticipated test findings and reports shielded from required disclosure to

the State because, he argues, such compelled disclosure would violate his rights to

effective assistance of counsel under the Sixth Amendment.1 The circuit court

order deferred ruling on this discovery issue until after the tests at issue are

completed and the court has had an opportunity to review the reports in camera.

We dismiss the petition as the defendant cannot show that this order is a departure

from the law resulting in irreparable harm.

        Certiorari is an extraordinary remedy that is available only in limited

circumstances. Certiorari is not a substitute for an appeal. See Cotton States Mut.

Ins. v. D'Alto, 879 So. 2d 67 (Fla. 1st DCA 2004). As the Florida Supreme Court

has explained, “‘certiorari is an extraordinary remedy and [it] should not be used to

circumvent the interlocutory appeal rule which authorizes appeal from only a few

types of non-final orders.’” Belair v. Drew, 770 So. 2d 1164, 1166 (Fla. 2000)

(quoting Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1098 (Fla. 1987)). This

Court may grant a petition for certiorari “only when the petitioner establishes (1) a

departure from the essential requirements of the law, (2) resulting in material

injury for the remainder of the trial (3) that cannot be corrected on post-judgment

appeal.” Capital One, N.A. v. Forbes, 34 So. 3d 209, 212 (Fla. 2d DCA 2010).


1   See Florida Rule of Criminal Procedure 3.220(d)(1)(B)(ii).
                                           2
First, this Court examines prongs two and three to determine its certiorari

jurisdiction. Holden Cove, Inc. v. 4 Mac Holdings Inc., 948 So. 2d 1041 (Fla. 5th

DCA 2007); Barker v. Barker, 909 So. 2d 333 (Fla. 2d DCA 2005).                   If

jurisdictional prongs two and three are not fulfilled, this Court should dismiss the

petition rather than deny it. Capital One, N.A., 34 So. 3d at 212.         See also

Travelers Indem. Co. v. Fields, 262 So. 2d 222, 224 (Fla. 1st DCA 1972)

(certiorari review premature on discovery issue where the trial court had not yet

conducted in camera review); Southern Baptist Hosp. of Florida, Inc. v. Charles,

178 So. 3d 102, 107 (Fla. 1st DCA 2015) (certiorari review should not promote

piecemeal review of non-final trial court orders). These general principles

governing the use of certiorari apply in criminal cases as well as civil cases. See

State v. Pettis, 520 So. 2d 250 (Fla. 1988).

      Here the trial court has not ruled on the discovery issue. The trial court’s

order merely defers ruling on the discovery issue until such time as the reports at

issue are completed and the court has had an opportunity to review the materials in

camera. Then the trial court will make a ruling. The trial court’s ruling is not a

departure from the essential requirements of the law and does not result in material

injury that the defendant cannot correct on appeal. Therefore, there is no basis

upon which to issue a writ of certiorari.

      Petition dismissed.




                                            3
