                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

U’DREKA ANDREWS,                        NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Petitioner,                       DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D16-733

STATE OF FLORIDA,

      Respondent.

___________________________/


Opinion filed May 2, 2017.

Petition for Writ of Certiorari – Original Jurisdiction.

Michael Ufferman, Michael Ufferman Law Firm, P.A., Tallahasee; Crystal Mcbee
Frusciante, Sunrise, for Petitioner.

Roseanne Eckert, FIU College of Law, Miami, for Amicus Curiae Florida Juvenile
Resentencing and Review Project; Whitney Untiedt, Akerman, LLP, Miami, for
Amicus Curiae Florida Association of Criminal Defense Lawyers, in support of
Petitioner.

Pamela Jo Bondi, Attorney General, Charmaine M. Millsaps, Senior Assistant
Attorney General, and Robert J. Morris, III, Assistant Attorney General, Tallahassee,
for Respondent.




LEWIS, J.

      Petitioner, U’Dreka Andrews, petitions this Court for certiorari review of the
trial court’s order denying her “Motion for Leave to Submit Requests for

Appointment of Experts and Costs Ex Parte and Under Seal and to Require the

Justice Administrative Commission to File Any Responses to Such Motions Without

Service to the State and Under Seal Where Such Responses Contain Substantive

Information Pertaining to Ms. Andrews’ Defense.” We deny the petition because

Petitioner failed to establish that the trial court departed from the essential

requirements of the law. In light of the important policy issue, however, we certify

a question of great public importance.

         In her motion, Petitioner alleged that she was convicted of first-degree felony

murder, burglary, and robbery based on offenses she committed at the age of

seventeen and she was sentenced to life imprisonment without the possibility of

parole for the murder. The Florida Supreme Court recently held that Petitioner is

entitled to resentencing in conformance with Chapter 2014-220, Laws of Florida,

the relevant provisions of which have been codified in sections 775.082, 921.1401,

and 921.1402, Florida Statutes (2014). Petitioner has been found indigent and is

represented by private counsel pro bono in the Miller1 resentencing proceeding. In

order to avoid revealing privileged information or work product to the State

Attorney’s Office, Petitioner requested permission to file all her motions for

appointed experts and miscellaneous costs ex parte and under seal, with service to


1
    Miller v. Alabama, 132 S. Ct. 2455 (2012).

                                            2
the Justice Administrative Commission (“JAC”) and notice to the State Attorney’s

Office, and requested that the JAC be required to file all responses that may reveal

substantive content relevant to her defense without service to the State and under

seal. Petitioner also relied on the rights to effective assistance of counsel, due

process, and equal protection, and she argued that she should not be prejudiced

because she is represented by pro bono counsel and is indigent for costs and is

entitled to the same due process and equal protection rights as similarly-situated

defendants who are represented by private counsel or the Public Defender’s Office

and would not be required to divulge details to the prosecution regarding the hiring

of experts. Following a hearing, the trial court entered an order denying Petitioner’s

motion. This petition for writ of certiorari followed.

      To obtain a writ of certiorari, a petitioner must show that the challenged order

constitutes a departure from the essential requirements of law, which results in

material injury that cannot be remedied on appeal. Suarez v. Steward Enters., 164

So. 3d 132, 134 (Fla. 1st DCA 2015). “[C]ertiorari relief is an ‘extremely rare’

remedy that will be provided in ‘very few cases.’”          Bd. of Trs. of Internal

Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 455 (Fla. 2012)

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

departs from the essential requirements of the law when it constitutes a violation of

a clearly established principle of law resulting in a miscarriage of justice. State,

Dep’t of Revenue ex rel. Carnley v. Lynch, 53 So. 3d 1154, 1156 (Fla. 1st DCA
                                          3
2011). Clearly established law may derive from controlling case law, rules of court,

statutes, or constitutional law. Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 890

(Fla. 2003). “[C]ertiorari jurisdiction cannot be used to create new law where the

decision below recognizes the correct general law and applies the correct law to a

new set of facts to which it has not been previously applied.” Nader v. Fla. Dep’t of

Highway Safety & Motor Vehicles, 87 So. 3d 712, 723 (Fla. 2012).

       Petitioner asserts that authority for the procedure she seeks is found in Florida

Rule of Judicial Administration 2.420, which governs “public access to and

protection of judicial branch records” and provides in part that “[t]he following

records of the judicial branch shall be confidential:”

       [c] (9) Any court record determined to be confidential in case decision
       or court rule on the grounds that
           (A) confidentiality is required to
              (i) prevent a serious and imminent threat to the fair, impartial,
              and orderly administration of justice;

                     ....

              (vii) comply with established public policy set forth in the
              Florida or United States Constitution or statutes or Florida rules
              or case law[.]

Petitioner argues that the denial of her petition will result in the violation of her rights

to due process, fundamental fairness, equal protection, and effective assistance of

counsel under the United States and Florida Constitutions, as well as the attorney-

client privilege and the work-product doctrine. Petitioner primarily relies on Ake v.

Oklahoma, 470 U.S. 68 (1985), and State v. Hamilton, 448 So. 2d 1007 (Fla. 1984),
                                             4
in support of her position. However, in Ake, the United States Supreme Court held:

      [W]hen a defendant demonstrates to the trial judge that his sanity at the
      time of the offense is to be a significant factor at trial, the State must,
      at a minimum, assure the defendant access to a competent psychiatrist
      who will conduct an appropriate examination and assist in evaluation,
      preparation, and presentation of the defense.

470 U.S. at 74, 83. The Court reasoned in part:

      [The State] must take steps to assure that the defendant has a fair
      opportunity to present his defense. This elementary principle, grounded
      in significant part on the Fourteenth Amendment’s due process
      guarantee of fundamental fairness, derives from the belief that justice
      cannot be equal where, simply as a result of his poverty, a defendant is
      denied the opportunity to participate meaningfully in a judicial
      proceeding in which his liberty is at stake.

Id. at 76. The Court further held that because the State relied on the aggravating

factor of future dangerousness at the appellant’s capital sentencing, he was entitled

to the assistance of a psychiatrist on that issue and the denial of that assistance

deprived him of due process. Id. at 86-87.

      In Hamilton, the Florida Supreme Court was faced with the following certified

question:

      When an appointed counsel informs the court, as provided in Florida
      Rule of Criminal Procedure 3.216(a), that he has reason to believe his
      indigent client is incompetent to stand trial or was insane at the time of
      the offense, does the trial court have any discretion as to any matter of
      law or fact the determination of which would entitle the State to be
      given notice and an opportunity to be heard before the court appoints
      an expert to examine the accused and to assist his appointed counsel?

448 So. 2d at 1008. The Court answered the question in the negative upon “finding

that any inquiry of defense counsel by the court as to the basis for counsel’s request
                                          5
for appointment of an expert would improperly invade the attorney-client

confidential relationship.” Id. The trial court denied the insolvent defendant’s

motion for appointment of a psychiatric expert pursuant to Florida Rule of Criminal

Procedure 3.216(a) on the ground that defense counsel refused to communicate to

both the court and the prosecutor the underlying basis for the motion. Id. The

Florida Supreme Court explained that rule 3.216(a) clearly states that when a court-

appointed counsel for an indigent defendant indicates a belief that the defendant may

be incompetent to stand trial or may have been insane at the time of the offense, the

threshold requirements are satisfied and the court has no discretion in appointing an

expert, and the rule provides that once an expert is appointed, all matters related to

the expert are confidential. Id. The Court further reasoned:

      The rule is designed to give an indigent defendant the same protection
      as afforded to a solvent defendant. Further, and as important, in many
      instances the basis for the request for such an expert is founded on
      communications between the appointed lawyer and his client. Any
      inquiry into those communications would clearly violate the basic
      attorney-client privilege. Any inquiry into counsel’s basis to believe
      that his indigent client is incompetent to stand trial or was insane at the
      time of the offense also impermissibly subjects the indigent defendant
      to an adversary proceeding concerning issues which may be litigated in
      the trial of the cause. No solvent defendant would be subjected to this
      type of inquiry or proceeding.

Id. at 1008-09.

      Unlike in Ake, Petitioner was not denied expert assistance, and Ake did not

hold that an indigent defendant is entitled to obtain expert assistance ex parte as

Petitioner seeks in our case. While Hamilton addressed whether a defendant is
                                          6
entitled to an ex parte proceeding to obtain expert assistance, that case involved—

and the supreme court’s holding was based on—rule 3.216(a), which is inapplicable

to our case. Cf. Fla. R. Crim. P. 3.220(m) (governing in camera and ex parte

proceedings); § 27.5304(3), Fla. Stat. (2016) (stating that the “[t]he court retains

primary authority and responsibility for determining the reasonableness of all

billings for attorney fees, costs, and related expenses, subject to statutory

limitations”). In fact, Petitioner cites no Florida case law, Florida statute, or Florida

rule of court that requires motions for appointment of experts and costs to be

conducted on an ex parte basis under the facts of this case and our independent

research disclosed none. As such, while we find Petitioner’s argument persuasive,

we are constrained to deny her petition in light of our limited standard of review

because the trial court’s order does not violate a clearly established principle of

law. See Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000) (stating that

without controlling precedent, the Court could not conclude that the courts violated

a clearly established principle of law and at worst misapplied the correct law); State,

Dep’t of Highway Safety & Motor Vehicles v. Edenfield, 58 So. 3d 904, 907 (Fla.

1st DCA 2011) (denying the certiorari petition upon concluding that “[w]hile the

circuit court has misread our decision in Lee to require the live appearance of a

witness in an administrative proceeding regarding a license suspension when a party

requests the live appearance, this misreading does not constitute a violation of a

clearly established principle of law. Indeed, there is no clear controlling precedent
                                           7
for the issue raised here”); Wolf Creek Land Dev., Inc. v. Masterpiece Homes, Inc.,

942 So. 2d 995, 997 (Fla. 5th DCA 2006) (“The statutory issue raised by Wolf Creek

in the present case is certainly debatable, but there appears to be no case law on the

matter that has been pointed out by either side or that has been disclosed by our own

independent research. As the order is not the subject of a clearly established

principle of law, certiorari is not available to review it.”).

      We, therefore, certify the following question as one of great public

importance:

      WHETHER     AN    INDIGENT  DEFENDANT     WHO    IS
      REPRESENTED BY PRIVATE COUNSEL PRO BONO IS
      ENTITLED TO FILE MOTIONS PERTAINING TO THE
      APPOINTMENT AND COSTS OF EXPERTS, MITIGATION
      SPECIALISTS, AND INVESTIGATORS EX PARTE AND UNDER
      SEAL, WITH SERVICE TO THE JUSTICE ADMINISTRATIVE
      COMMISSION AND NOTICE TO THE STATE ATTORNEY’S
      OFFICE, AND TO HAVE ANY HEARING ON SUCH MOTIONS EX
      PARTE, WITH ONLY THE DEFENDANT AND THE
      COMMISSION PRESENT.

      DENIED. QUESTION CERTIFIED AS ONE OF GREAT PUBLIC

IMPORTANCE.

WETHERELL, J., CONCURS; WOLF, J., CONCURS IN PART AND DISSENTS
IN PART WITH OPINION.




                                            8
WOLF, J., concurring in part and dissenting in part.

      I concur in the majority’s certification of the question of great public

importance. I dissent, however, from that portion of the opinion that determined the

trial court’s order denying the ex parte proceeding did not constitute a departure from

the essential requirements of law. An indigent defendant who is represented by

private counsel pro bono is entitled to an ex parte proceeding concerning the

entitlement to hire expert witnesses and investigators.

      To obtain certiorari relief, a petitioner must demonstrate “‘(1) a departure

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

remainder of the case (3) that cannot be corrected on postjudgment

appeal.’” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344, 351

(Fla. 2012) (quoting Williams v. Oken, 62 So. 3d 1129, 1132-33 (Fla. 2011)).

      In other words, before certiorari can be used to review non-final orders,
      the appellate court must focus on the threshold jurisdictional question:
      whether there is a material injury that cannot be corrected on appeal,
      otherwise termed as irreparable harm. Assuming this requirement is
      met, the court must then determine whether the decision below departed
      from the essential requirements of law . . . .

Id. at 351 (internal citations omitted) (emphasis added).

      Thus, an appellate court does not reach the departure element until irreparable

harm is demonstrated. Here, I believe petitioner has demonstrated the threshold

requirement of irreparable harm. While the majority opinion does not specifically

mention irreparable harm, it has in fact decided this issue by reaching the merits of

                                          9
the claim. This reading is consistent with the fact that irreparable harm is not

seriously in dispute in this case. The improper disclosure of defense strategies and

potential expert witnesses by allowing the State to attend the hearing requesting

authorization to hire these witnesses is classic “cat out of the bag” material.

Revealing such material has always been determined to meet the test of irreparable

harm. See Lender Processing Servs., Inc. v. Arch Ins. Co., 183 So. 3d 1052, 1058

(Fla. 1st DCA 2015).

      I would also find that a departure from the essential requirements of law has

been demonstrated. The majority enumerates the correct principle of law for

establishing a departure from the essential requirements of law and I will repeat it

here: a ruling departs from the essential requirements of law when it constitutes a

violation of a clearly established principle of law resulting in a miscarriage of

justice. State Dep’t of Revenue ex rel, Carnley v. Lynch, 53 So. 3d 1154, 1156 (Fla.

1st DCA 2011).

      I also do not dispute the general principle that normally to demonstrate a

clearly established principle of law, the petitioner must demonstrate existing

precedent on the issue. However, unlike the majority, I stress that as stated by the

Florida Supreme Court, clearly established principles of law derive not only from

controlling case law but also from constitutional law. Allstate Ins. Co. v.

Kaklamanos, 843 So. 3d 885, 890 (Fla. 2003). None of the cases cited by the

majority denying certiorari relief involve a departure from a clearly established and
                                         10
essential constitutional principle. This case involves a departure from such a

principle, which is that equal protection mandates that we do not treat two equally

situated criminal defendants differently, especially when there is no rational basis

for doing so.

       In the instant case, petitioner demonstrated that:

       (1) Non-indigent and, more importantly, other indigent defendants
       represented by public defenders can obtain expert witnesses and
       investigative support without revealing their thought processes in front
       of the prosecuting authority;

       (2) These types of witnesses and investigations are essential, if not
       critical, in representing a defendant on resentencing pursuant to section
       942.1401(2), Florida Statutes (2016); and

       (3) There is no rational basis for the state attorney to be present at these
       hearings. The State acknowledged that its only interest in being present
       at these hearings was financial. These financial interests are more
       properly represented by the Judicial Administration Commission at an
       ex parte hearing. See, e.g., State v. Nolasco, 803 So. 2d 757 (Fla. 3d
       DCA 2001). In fact, the state attorney did not oppose defense counsel’s
       request for an ex parte hearing in this case.

       Thus, petitioner has demonstrated a departure from the essential requirements

of the equal protection clauses of the United States and Florida Constitutions

entitling her to certiorari relief.

       I would also find that petitioner’s request is supported by the reasoning, if not

the holdings, of Ake v. Oklahoma, 470 U.S. 68 (1985), and State v. Hamilton, 448

So. 2d 1007 (Fla. 1984), as well as the explicit holdings in United States v. Abreu,

202 F.3d 386, 387-91 (1st Cir. 2000), and Ex parte Moody, 684 So. 2d 114, 120-21

                                           11
(Ala. 1996). Thus, I would grant the petition for writ of certiorari.




                                          12
