FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
for Certiorari Review of Order from the Circuit Court for
Brevard County, Charles G. Crawford, Judge.
Archer, State Attorney, and Julia Lynch, Assistant State
Attorney, Viera, for Petitioner.
Trettis, Public Defender, and Patrick Lepore, Assistant
Public Defender, Viera, for Respondent.
State of Florida seeks certiorari relief from a circuit court
order denying its motion to consolidate. We grant the writ.
receive relief under certiorari review, a party must show
that the lower court departed from the essential requirements
of the law, the party will suffer a material injury for the
rest of the case, and there is no adequate remedy on
post-judgment appeal. Holmes Reg'l Med. Ctr., Inc. v.
Dumigan, 151 So.3d 1282, 1284 (Fla. 5th DCA 2014)
(citing Allan & Conrad, Inc. v. Univ. of Cent.
Fla., 961 So.2d 1083, 1087 (Fla. 5th DCA 2007)). The
last two requirements are often combined into the concept of
"irreparable harm." Id. (citing
Citizens Prop. Ins. Corp. v. San Perdido Ass'n,
104 So.3d 344, 351 (Fla. 2012)). Irreparable harm is
jurisdictional and must be found before a court may even
consider whether there has been a departure from the
essential requirements of the law. Id.
October 4, 2011, a grand jury indicted Oscar Milbry, III, on
charges of first-degree felony murder and aggravated child
abuse. The case was set for trial. Shortly before trial,
Milbry listed Dr. Mark Shuman as an expert witness. During
the State's deposition, Dr. Shuman provided an
alternative theory that would support the charge of
aggravated manslaughter of a child. Based on the doctor's
testimony, the State filed an information charging Milbry
with aggravated manslaughter of a child and thereafter moved
to consolidate the two cases because the separate charging
documents arose from the death of the same child. The motion
was denied, prompting the State to seek certiorari review.
first consideration in any certiorari proceeding is whether
irreparable harm has been demonstrated. State v.
Foley, 193 So.3d 24, 26 (Fla. 3d DCA 2016). Irreparable
harm in the criminal context, when the petition is brought by
the State, is a unique issue due to the State's limited
ability to appeal. State v. Pettis, 520 So.2d 250,
253 (Fla. 1988). Indeed, the State may only appeal certain
enumerated orders, id. (citing Fla. R. App. P.
9.140(c)), and the order under consideration here is not
within that list. See Fla. R. App. P. 9.140(c).
Moreover, when there is an acquittal, the State is precluded
from review by double jeopardy. Id. Accordingly, the
Florida Supreme Court has held that where an order forces the
State to proceed to trial with a significant impairment, and
no appeal from the order would be available on an acquittal,
the State may properly invoke certiorari review. See
Pettis, 520 So.2d at 253.
State argues it has a material injury that cannot be
corrected on appeal because it is being forced to present
competing theories of guilt for the same act in separate
trials. According to the State, if it moves ahead with the
felony murder and child abuse case, Milbry will argue
culpable negligence to defeat the intent element. Conversely,
if the State moves ahead on aggravated manslaughter of a
child, Milbry will argue child abuse as a defense to defeat
the culpable negligence element by showing intent.
Accordingly, the State maintains that the current order
forces it to trial without a fundamental theory of the case,
and requires it to proceed piecemeal, with Milbry able to use
the State's own alternative theories as a defense.
question we must resolve is whether this alleged harm
substantially impairs the State's ability to prosecute.
State v. Jones, 30 So.3d 619, 623 (Fla. 2d DCA 2010)
(citing Pettis, 520 So.2d at 253). We conclude that
it does. Because failing to consolidate robs the State of an
entire theory of culpability, the State has alleged
irreparable harm sufficient to invoke certiorari
turn to whether there has been a departure from the essential
requirements of the law. State v. Clyatt, 976 So.2d
1182, 1182 (Fla. 5th DCA 2008). Florida Rule of Criminal
Procedure 3.151(b) provides:
(b) Consolidation of Indictments or
Informations. Two or more indictments or
informations charging related offenses shall be
consolidated for trial on a timely motion by a defendant or
by the state. The procedure thereafter shall be the
same as if the prosecution were under a single indictment or
information. Failure to timely move for consolidation
constitutes a waiver of the right to consolidation.
Fla. R. Crim. P. 3.151(b) (emphasis added). For the purpose
of this rule, related offenses are two or more offenses
"triable in the same court and . . . based on the same
act or transaction or on 2 or more connected acts ...