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How to Start, Draft, and File a Petition for a Writ of Certiorari

How to Start, Draft, and File a Petition for a Writ of Certiorari

How to Start, Draft, and File a Petition for a Writ of Certiorari 1920 1080 Leppard Law - Top Rated Orlando DUI Lawyers & Criminal Attorneys in Orlando
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HOW TO BEGIN

If you want to appeal, you will have 30 days after the Hearing Officer’s final order is issued to file a certiorari petition. Fla. R. App. P. 9.100(c), 9.190(b)(3). This deadline is jurisdictional and heavily enforced.

The deadline applies even if the Department is late in giving you the final order or other documents you would need to complete the petition. In that case, you still need to file the petition within the 30-day deadline, even if only a barebones one, and you can ask for leave to amend the petition and appendix in the near future (which should be granted with little trouble).

Once you know you’re appealing, you need to gather the following:

The Hearing Officer’s final order.

The audio recording of the hearing. (Contact the Hearing Officer for the recording. If the hearing was held on multiple days, get the recordings for each day).

Any documents presented at the hearing. (Hopefully you already have these in the form of the Department’s discovery, along with any evidence you may have introduced for your client.)

If you can’t get everything for some reason, you may exclude it from the appendix if it isn’t relevant (except for the final order), as the appellate rules only require you to include what is necessary to resolve the issues presented. See Fla. R. App. P. 9.220. For example, we usually don’t include the client’s driving record because the Department doesn’t provide it to us and it’s irrelevant—but if it becomes relevant, then of course you should obtain and include it.

This next step is important: Get the hearing audio officially transcribed as soon as possible. The transcript is usually essential, and it can take as long as a couple weeks to be completed, and then you have to incorporate it into the petition—all before the 30-day deadline. For transcription, we generally use Marge Raeder Court Reporting at margeraedercourtreporting@gmail.com.

PREPARING THE APPENDIX

The appendix is required and governed by Florida Rule of Appellate Procedure 9.220. You will file the appendix with the certiorari petition. Do the following to create an appendix that complies with the rule:

Make an appendix cover, which includes a caption (court heading), an index of the appendix’s contents, and a certificate of service. This cover will be the beginning of the appendix itself.

Compile the Hearing Officer’s final order, the documents introduced at the hearing, the hearing transcript, and any other documents you choose to include into a single PDF. The documents must be arranged in accordance with how your index orders them. Also, make sure that every page is 11 x 8.5 inches, or the eFiling Portal won’t accept it.

Insert the appendix cover at the beginning of the PDF. Then have the pages numbered. Make sure that “the page numbers displayed by the PDF reader exactly match the pagination of the index,” as Rule 9.220(c)(2) puts it.

Note that you may choose to start drafting the petition before the appendix is completed (owing to the strict deadline), but you won’t be able to finalize the petition until the appendix is completed because your factual and procedural assertions must cite the appendix and be accurate.

WRITING THE PETITION

Petitions invoking the original jurisdiction of appellate courts (including certiorari petitions) are technically different from appeals and are governed by different rules. Florida Rules of Appellate Procedure 9.100(g) and (l) govern these petitions. Here are their requirements:

Both the main text and the footnotes of the petition must be in either Arial 14-point font or Bookman Old Style 14-point font.

The text (except for the headings) must be double-spaced.

The petition must include a caption (court heading) and describe 1) the basis for the court’s jurisdiction, 2) a statement of facts, 3) the nature of the relief sought, and 4) supporting argument and legal citations. While not technically required, you should also include a table of contents, a table of citations, and perhaps a summary of argument as in regular appellate briefs. See Fla. R. App. P. 9.210.

You now have to choose which court you’re filing the petition in (considering it will be reflected in the caption and jurisdictional statement). The petition can be heard by the circuit court in either the county wherein the client resides or the county where the hearing was held. § 322.2615(13), Fla. Stat. E.g., if the client was stopped and arrested in Lake County, the client lives in Polk County, and the hearing was held in Orange County, you must file in either Polk or Orange County.

Once you’ve written everything except for the table of contents and table of citations, you will need to place a certificate of compliance immediately after the certificate of service. Florida Rule of Appellate Procedure 9.100(l) requires this certificate, which must certify that the petition complies with the font requirements of the rule by being double-spaced and in Arial 14-point font or Bookman Old Style 14-point font. Once this certificate is included and you’re done revising the petition, you’re ready to finalize the table of contents and table of citations.

Here are some last things to note while writing the petition:

You are technically not making an appeal, but filing a petition to invoke the original jurisdiction of the court to issue a writ of certiorari.

The client was not the “defendant” at the hearing, but the “licensee” or the “driver” (choose one and stick with it).

Since this is a petition and not an appeal, your client and the Department are not the “appellant” and the “appellee”; instead, they are the “petitioner” and the “respondent.”

HOW TO FILE THE PETITION (WITH PICTURES)

These are the instructions for filing in Orange County, but it could differ in other counties.
In the eFiling portal, navigate to the E-Filing Map and click “Case Initiation,” select the county you’re filing in, and click on “File Now.”

You should now be on the “Case Information” tab with some drop-downs to fill out:

How to Do Writs - Step 1 Example

For Division, select “Circuit Civil”

For Case Type, select “Specialized Other”

For Sub Type, select “Certiorari”

Don’t select anything for Total Number of Defendants or Summons to be issued

For Proceeding Type of Case, select “Circuit Civil – Not Applicable”

For Complex Business Indicator, select “No”

For Remedies Sought, check “Non-monetary, declaratory or injunctive relief”

For Number of Causes of Action, Enter “1”

For Class Action, select “No”

For Related Cases Filed, usually select “No” (unless you’re trying to consolidate the petition with others)

For Jury Trial Demanded, select “No”

Now proceed to the Case Parties tab:

How to Do Writs - Step 2

When adding your client as a party, select “Plaintiff” for the Role and mark off both checkboxes for Primary Party and Filed On Behalf of, then enter the client’s information.

When adding the Department as a party, select “Defendant” for the Role and mark off only the checkbox for Primary Party, then enter the Department’s information: Department of Highway Safety and Motor Vehicles, 2900 Apalachee Parkway, A-432, Tallahassee, FL 32399.

Proceed to the “Documents” tab, and you’ll see that a civil cover sheet has been autogenerated for you. This is where you submit the petition and appendix (and other documents if applicable, such as a motion to consolidate or a motion for attorney’s fees and costs).

Proceed to the “ServiceList” tab. Serve the Department at Office of General Counsel, Department of Highway Safety and Motor Vehicles, 2900 Apalachee Parkway, A-432, Tallahassee, FL 32399, at OGCFiling@flhsmv.gov.

After that, you just have to pay the $400 filing fee, review your submissions, and file.

WHAT HAPPENS ONCE THE INITIAL PETITION IS FILED

Unlike with regular appeals, filing a petition will not automatically set a briefing schedule. Instead, you must wait until the court determines whether the petition presents a “preliminary basis for relief”; if it does, the court will then issue an order to show cause, directing the Department to file a response and allowing you to file a reply. See Fla. R. App. P. 9.100(h).

The court will generally require the response to be filed within 30 days of the order to show cause and the reply to be filed within 30 days after the response is filed. Note that the petition, response, and reply correspond with the initial brief, answer brief, and reply brief in regular appeals.

Finally, you should file a request for oral argument to get the full attention of the court. The deadline to file such a request is 15 days after the deadline to file the reply. Fla. R. App. P. 9.320(b).

Important: The request for oral argument must be filed as a separate document. Fla. R. App. P. 9.320. If you try to request oral argument in your petition or reply, the request may be disregarded as invalid.

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