       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 28, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-416
                 Lower Tribunal Nos. 13-211 AC & B13-4139
                            ________________


                                Luis Lezcano,
                                    Petitioner,

                                        vs.

                               State of Florida,
                                   Respondent.


      On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, Appellate Division, Nushin G. Sayfie, Samantha Ruiz-Cohen, and Robert
J. Luck, Judges.

      Carlos J. Martinez, Public Defender, and Jeffrey P. DeSousa, Assistant
Public Defender, for petitioner.

      Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant
Attorney General, for respondent.


Before SUAREZ, C.J., and LAGOA and EMAS, JJ.

     LAGOA, J.
      The petitioner, Luis Lezcano (“Lezcano”), petitions for a writ of certiorari

seeking to quash a decision of the appellate division of the circuit court affirming

his conviction for indecent exposure.     Because we find that the jurisdictional

requirements necessary for granting a writ of certiorari have not been satisfied, we

deny the petition.

      Lezcano asserts that the circuit court departed from the essential

requirements of the law when it affirmed the trial court’s denial of his motion to

strike potential juror James for cause. Although unnecessary to our conclusion to

deny the petition, we note that in his appeal to the circuit court, Lezcano failed to

address the issue of prejudice. See Conde v. State, 860 So. 2d 930, 941 (Fla. 2003)

(“Where an appellant claims he was wrongfully forced to exhaust his peremptory

challenges because the trial court erroneously denied a cause challenge, both error

and prejudice must be established.”). At trial, Lezcano’s challenge for cause to

potential juror Cuevas was denied.      After Lezcano exhausted his peremptory

challenges, he requested and was granted an additional peremptory. Lezcano used

the additional peremptory to strike Cuevas. Lezcano then requested a second

additional peremptory to strike James. That request was denied and James sat on

the jury. The trial court’s granting of the additional peremptory, in the absence of

Lezcano demonstrating any error as to the denial of his challenge for cause to

Cuevas, cured any prejudice to Lezcano. See Busby v. State, 894 So. 2d 88, 97

(Fla. 2004) (“A defendant cannot demonstrate prejudice if the trial court grants the

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same number of additional peremptories as cause challenges that were erroneously

denied.”); see also Smith v. State, 28 So. 3d 838 (Fla. 2009) (finding harmless

error where trial court erroneously denied two for-cause challenges and granted

defendant three additional peremptory challenges). This issue was not preserved,

however, as Lezcano failed to present the required argument to the circuit court.

      Turning to the issue presented, we once again recognize that on second-tier

certiorari review our “‘inquiry is limited to whether the circuit court afforded

procedural due process and whether the circuit court applied the correct law,’ or, as

otherwise stated, departed from the essential requirements of law.” Custer Med.

Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010) (quoting Haines

City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995)); accord Fla. Parole

Comm’n v. Taylor, 132 So. 3d 780, 783 (Fla. 2014). Common-law certiorari relief

is discretionary in nature, and “a district court should exercise its discretion to

grant review only when the lower tribunal has violated a clearly established

principle of law resulting in a miscarriage of justice.” Custer, 62 So. 3d at 1092.

To that end, the Supreme Court of Florida has made clear that certiorari cannot be

used to correct the existence of mere legal error. See id. at 1093 (“[A] circuit court

appellate decision made according to the forms of law and the rules prescribed for

rendering it, although it may be erroneous in its conclusion as to what the law is as

applied to facts, is not a departure from the essential requirements of law

remediable by certiorari.”); Sutton v. State, 975 So. 2d 1073, 1081 (Fla. 2008)

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(“Due to its discretionary nature, a district court of appeal may refuse to grant

certiorari relief even if there is legal error which could be argued to be a departure

from the essential requirements of law.” ); Ivey v. Allstate Ins. Co., 774 So. 2d

679, 683 (Fla. 2000) (concluding that district court of appeal inappropriately

exercised certiorari review where it merely disagreed with the circuit court’s

interpretation of the applicable law).

      Given the narrow scope of this Court’s certiorari review of an appellate

decision of the circuit court, we find that the circuit court did not depart from the

essential requirements of the law in its application of Matarranz v. State, 133 So.

3d 473 (Fla. 2013), when it affirmed Lezcano’s conviction in the county court.1

Accordingly, we deny the petition for writ of certiorari.

      SUAREZ, C.J., concurs.



                                      Luis Lezcano v. State of Florida, 3D15-416
      1 We take this opportunity to remind trial judges of the Supreme Court of
Florida’s statement in Matarranz that

             if there is basis for any reasonable doubt as to any juror's
             possessing that state of mind which will enable him to
             render an impartial verdict based solely on the evidence
             submitted and the law announced at the trial, he should
             be excused on motion of a party, or by the court on its
             own motion.

133 So. 3d at 484 (quoting Singer v. State, 109 So. 2d 7, 23-24 (Fla. 1959)). See
also Kopsho v. State, 959 So. 2d 168, 170 (Fla. 2007) (“A juror must be excused
for cause if any reasonable doubt exists as to whether the juror possesses an
impartial state of mind.”).

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      EMAS, J., concurring in result.

      I concur in denying the petition on the basis that petitioner in his direct

appeal failed to raise or establish the claim he now asks us to consider on second-

tier certiorari. As the majority notes, the trial court denied Lezcano’s for-cause

challenges of two prospective jurors: James and Cuevas. After Lezcano exhausted

all of his peremptory challenges, he requested, and the trial court granted, one

additional peremptory challenge, which Lezcano then utilized to strike Cuevas.

      On direct appeal, Lezcano claimed he was entitled to a new trial because the

trial court had erroneously denied Lezcano’s for-cause challenge of James. No

claim was raised, or argument made, regarding error in the trial court’s denial of

Lezcano’s for-cause challenge of Cuevas. This failure was fatal because, given the

trial court’s granting of an additional peremptory challenge, Lezcano could prevail

on his direct appeal only if he established that the trial court erred in denying

Lezcano’s for-cause challenge of both prospective jurors.

      Overton v. State, 801 So. 2d 877 (Fla. 2001) is directly on point.         In

Overton, the trial court denied defendant’s for-cause challenges of two prospective

jurors—Russell and Heuslein. After exhausting all of his peremptory challenges,

defendant requested and was granted one additional peremptory challenge. The

Court explained the burden which must be met under these circumstances:

      [T]o prevail with this argument, Overton must establish that the trial
      court erred in denying the challenges for cause as to both Russell and
      Heuslein because the trial court did award the defense one additional
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        peremptory challenge, thereby replacing one of the peremptory
        challenges expended on either Russell or Heuslein. This issue could
        only constitute reversible error if we conclude that the trial court erred
        in denying the challenges as to both of these potential jurors. See, e.g.,
        Watson v. State, 651 So.2d 1159, 1162 (Fla.1994) (“Since the trial
        judge gave Watson one additional peremptory challenge, he is not
        entitled to reversal unless both jurors were improperly excused.”);
        Cook v. State, 542 So.2d 964, 969 (Fla.1989) (“Because the trial
        judge granted the appellant's motion for one additional challenge,
        appellant is entitled to have his conviction reversed only if he can
        show that the judge abused his discretion in refusing to excuse both
        jurors Sergio and Boan for cause.”).
Id. at 889-90 (underscore emphasis added).
        The instant case presents the identical situation. On appeal, Lezcano was

therefore required to assert and establish that the trial court erred in denying the

for-cause challenges as to both Cuevas and James.2 By granting an additional

peremptory challenge, the trial court “cured” any potential error as to one of the

two jurors.3 It may well be that the trial court was correct in denying the for-cause

challenge as to James or as to Cuevas (or perhaps correct as to both). However, by

limiting his claim to one challenging the trial court’s failure to excuse James for

cause, Lezcano is not entitled to relief because Lezcano could have utilized the


2 The circuit court, in affirming, did not address this fatal flaw in Lezcano’s appeal,
and instead reached the merits of Lezcano’s claim that the trial court erred in its
denial of a for-cause challenge of James. Lezcano urges us to ignore his own
failure to properly raise the issue on direct appeal and to correct what he
characterizes as the circuit court’s misapplication of the law. I would decline the
invitation to address the merits given that the result reached by the circuit court
was correct, even if it was arguably for the wrong reason. Lezcano cannot
reasonably suggest that he should reap a benefit from his own failure to properly
sow the very claim he now requests us to review.
3 Had the trial court denied any additional peremptory challenge, Lezcano could

prevail by establishing that the trial court erred in denying the for-cause challenge
of either James or Cuevas.
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additional peremptory challenge to strike James. Instead, Lezcano chose to use the

additional peremptory challenge to strike Cuevas. Lezcano’s decision to use this

additional peremptory challenge to strike Cuevas (as opposed to James) is not

determinative of what Lezcano must establish on appeal. By addressing only the

court’s denial of the for-cause challenge of James, Lezcano ignored the possibility

(and the legal presumption) that the trial court properly denied the for-cause

challenge of Cuevas, that Cuevas was qualified to serve as a juror, and that

Lezcano should therefore have used the additional peremptory challenge to strike

James (as opposed to Cuevas). By contrast, if on direct appeal Lezcano asserted

and demonstrated that the trial court erred in denying both for-cause challenges,

then the granting of one additional peremptory challenge would not cure the error;

the erroneous denial of two for-cause challenges could only be cured by granting

two additional peremptory challenges.         Therefore, without asserting and

establishing that the trial court’s actions were erroneous as to both James and

Cuevas, Lezcano failed to demonstrate reversible error and could not prevail on his

direct appeal.

      Because Lezcano failed to raise or properly establish this claim on appeal, I

would deny the petition on this basis and would not reach the merits.




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