Third District Court of Appeal
State of Florida
Opinion filed July 15, 2026.
Not final until disposition of timely filed motion for rehearing.
Nos. 3D25-1610, 3D25-1535
Lower Tribunal No. F13-10177B
State of Florida,
Petitioner,
vs.
Julio Montez Morris,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Alberto Milian, Judge.
James Uthmeier, Attorney General, and Jennifer A. Davis, Senior Assistant Attorney General, for Petitioner.
Arnaldo Suri and J. Rafael Rodriguez, for Respondent.
Before SCALES, C.J., and GORDO and GOODEN, JJ.
PER CURIAM.
The State of Florida petitions for a writ of certiorari to quash a non-final
Order requiring the case against Julio Montez Morris (“Morris”) to proceed
as a non-death penalty case. For the reasons that follow, we grant the
petition for writ of certiorari and quash the order below.
I.
In November 2013, Morris and a codefendant, Clifton Dickson, were
indicted for the first-degree murder of Jazzmon Parker and the attempted
murder of Donnel Parker. The State filed a notice of intent to seek the death
penalty for both defendants. The notice of intent to seek death was limited
to one murder victim: Jazzmon Parker. Based on new allegations arising
pending trial, a new indictment was filed against Morris in 2015 and Dickson
in 2019 alleging witness tampering, retaliation against a witness, armed
burglary and armed robbery. Trial began in January 2019. Mid-trial, key
witness Ezell Finklea—who reportedly saw Morris murder Jazzmon Parker—
was attacked in his home and murdered, along with another witness, Ira
Williams. The trial court subsequently declared a mistrial.
In April 2019, the State filed a superseding indictment against Morris
charging him and his codefendants with three counts of first degree murder
for the murder of Jazzmon Parker, and the mid-trial retaliation murders of
witnesses Finklea and Williams; conspiracy to commit first degree murder;
2
attempted premeditated murder; two counts of retaliating against a witness
with bodily injury; two counts of tampering with a witness on a life/capital
felony; armed burglary with assault or battery; and attempted premeditated
murder with a deadly weapon or aggravated battery. In light of the
superseding indictment, the State filed its notice of intent to seek the death
penalty against Morris and his co-defendants. While the new indictment was
originally sought in 2019 and temporarily given a 2019 case number, the
Clerk of Court consolidated the new charges into the original 2013 case
number.
Nearly two years later, in March 2021, while conducting routine
tracking audits on death cases, the Deputy Chief Assistant for the Legal
Division at the State—unaware of the new indictment or charges—prepared
and filed a form titled “Announcement of Death Penalty Waiver” as to Morris
only, based on the prior waiver of the original charges. 1 The waiver, which
bypassed the State Attorney’s Office recommendation and review process
and was never announced in open court or otherwise communicated to the
trial court or attorneys, went completely unnoticed by all parties—including
capital death phase counsel who continued preparing the case for trial—for
1
The attorney that filed the waiver was not assigned to the case or listed as an attorney of record.
3
over 3 years. In June 2024, the current Assistant State Attorney assigned to
Morris’s case discovered the waiver and contacted Morris’s defense counsel,
Mr. Rodriguez. On June 18, 2025, the State filed a motion for clarification
and an affidavit detailing the circumstances surrounding the mistaken filing.
The affidavit from the Deputy Chief Assistant who filed the waiver
confirmed it was solely an administrative record-keeping item applicable only
to the 2013 indictment for the single murder of Jazzmon Parker. The Deputy
Chief Assistant indicated the waiver was mistakenly filed subsequent to the
new charges as she was unaware of the superseding indictment charging
Morris with the additional retaliation murders of the two witnesses Finklea
and Williams, and the State’s subsequent notice of intent to seek death. No
death penalty waivers were filed for the arguably equally culpable codefendants and there is nothing in the record referencing any evaluation or
recommendation by the Death Penalty Committee.
The waiver purported that defense counsel was served, but counsel
stated on the record at the hearing that he did not receive the waiver, 2 and
2
MR. RODRIGUEZ [Defense]: “In fact, we didn't even know about this until 2024. That's why we continued mitigation [be]cause I asked the State look into it with your legal department.”; (“While Mr. Suri’s address and email were correctly noted in the Announcement, Mr. Rodriguez's address and email were incorrect. Mr. Suri searched his files and emails and did not find any such notification.”).
4
the assigned prosecutor made no oral announcement on the record that the
death penalty had been waived for Morris. 3
At the June 23, 2025 hearing, defense counsel argued that the State’s
intent was irrelevant as the notice of waiver was now a filed document with
the Court, used the present tense, and contained no reference to any
particular indictment. Thus, Morris’s counsel argued that neither the rules
nor statute permitted recission of a notice of waiver after the 45-day period
for the State to file a notice of intent to seek the death penalty after an
indictment is filed.
The State argued the waiver was not intended to apply to the 2019
indictment, was not processed through the waiver review process and was
never announced to the court. The trial court acknowledged that based on
the facts of the case, the waiver was probably filed in error but decided that
the State was “stuck” with that mistake because it has to do with the death
penalty—alluding to “death is different.” 4
3
MR. WARFMAN: “. . . If this were to be waived it would [have] gone through the process, it would have been an announcement in open court, so I'm not putting anything on defense counsel.”
4
“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” Woodson v. North Carolina, 428 U.S. 280, 305 (1976); see also Strickland v. Washington, 466 U.S. 668, 704 (1984) (Brennan, J., concurring
5
After hearing arguments by the parties, the trial court ruled that the
waiver would apply to Morris’ current indictment and all new charges. As
such, the State would be prohibited from presenting the case as a death
penalty case. 5 The State subsequently filed this Petition for Writ of Certiorari
to challenge the order.
II.
Our standard of review on a petition for writ of certiorari puts the
jurisdictional element first, thus “a party seeking a writ of certiorari must
establish ‘(1) a material injury in the proceedings that cannot be corrected on
appeal (sometimes referred to as irreparable harm); and (2) a departure from
the essential requirements of the law.’” Schaeffer v. Medic, 394 So. 3d 128,
130–31 (Fla. 3d DCA 2024) (quoting Fla. Power & Light Co. v. Cook, 277
So. 3d 263, 264 (Fla. 3d DCA 2019)); American Prime Title Servs., LLC v.
Wang, 317 So. 3d 1183, 1185 (Fla. 3d DCA 2021) (quoting A.H. v. Dep’t. of
Children & Fams., 277 So. 3d 704, 706-707 (Fla. 3d DCA 2019)); State v.
Lyons, 392 So. 3d 281, 284 (Fla. 2d DCA 2024). “Courts consider in tandem
in part and dissenting in part) (“[W]e have consistently required that capital proceedings be policed at all stages by an especially vigilant concern for procedural fairness and for the accuracy of factfinding[.]”). 5
The trial court also indicated at the hearing that it would apply the waiver to co-defendant Dickson despite the waiver only naming Morris.
6
whether the contested order would cause the petitioner material injury and
whether the petitioner has an adequate remedy on appeal, referring to the
combined question as whether the petitioner would suffer ‘irreparable harm.’”
State v. Garcia, 350 So. 3d 322, 325 (Fla. 2022). “The requirement of
irreparable harm is jurisdictional.” Thomas-McDonald L. Firm, P.A. v. Silva,
400 So. 3d 753, 754 (Fla. 3d DCA 2024). “Unless the petitioner establishes
irreparable harm, the court must dismiss the petition for lack of jurisdiction.”
Damsky v. Univ. of Miami, 152 So. 3d 789, 792 (Fla. 3d DCA 2014);
Stockinger v. Zeilberger, 152 So. 3d 71, 73 (Fla. 3d DCA 2014) (“The
establishment of irreparable harm is a condition precedent to invoking
certiorari jurisdiction.” (citing Miami–Dade Cnty. v. Dade Cnty. Police
Benevolent Ass'n, 103 So. 3d 236, 238 (Fla. 3d DCA 2012))).
III.
We first examine whether the State has demonstrated irreparable harm
to overcome the first jurisdictional hurdle. Because the trial court’s ruling will
prevent the State from prosecuting its case against Morris as a death penalty
case as set forth in the superseding April 22, 2019 indictment, we find the
State has met the first jurisdictional hurdle. “Irreparable harm in the criminal
context, when the petition is brought by the State, is a unique issue due to
7
the State's limited ability to appeal.”6 State v. Kilburn, 418 So. 3d 275, 278
(Fla. 2d DCA 2025) (quoting State v. Milbry, 219 So. 3d 160, 161 (Fla. 5th
DCA 2017)); State v. Pettis, 520 So. 2d 250, 253 (Fla. 1988) (“If a nonfinal
order does not involve one of the subjects enumerated in Florida Rule of
Appellate Procedure 9.140(c)(1), the [S]tate would not be able to correct an
erroneous and highly prejudicial ruling. Under such circumstances, the
[S]tate could only proceed to trial with its ability to present the case
significantly impaired.”). And “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.” Milbry, 219 So. 3d at 161.
The order causes irreparable harm by permanently barring the State
from seeking the death penalty against Morris pursuant to the superseding
indictment and concomitant notice of intent to seek death, while allowing the
State to pursue the death penalty against codefendants, who are alleged to
6
See Lyons, 392 So. 3d at 285 (“It is well-settled that certiorari jurisdiction exists to review nonfinal orders that impair the State's ability to prosecute its case.”); see also section 924.07(1)(h), Florida Statutes (authorizing the State to appeal all other pretrial orders); Appealable orders, 2 Fla. Prac., Appellate Practice § 27:24 n.4 (2025 ed.) (“Because there is no comparable court rule for nonfinal orders, an appeal to the district court of appeal under this section must be treated as a petition for certiorari.” (citations omitted)).
8
be equally culpable in the murders of witnesses Finklea and Williams.
“Under Florida law, when a co[-]defendant is equally culpable or more
culpable than the defendant, disparate treatment of the co[-]defendants may
render the defendant’s punishment disproportionate.” Farina v. State, 801
So. 2d 44, 55 (Fla. 2001). Here, the order forces the State to proceed to trial
with significant prosecutorial impairment as to Morris, and no appeal from
the order would be available post-trial. See Pettis, 520 So. 2d at 253. This
satisfies the irreparable harm element of certiorari.
IV.
Next, we must determine whether the trial court departed from the
essential requirements of the law. A departure of the essential requirements
of law is “a violation of a clearly established principle of law resulting in a
miscarriage of justice.” Combs v. State, 436 So. 2d 93, 96 (Fla. 1983). It is
more than mere legal error. Id. at 95. Cf. Jones v. State, 477 So. 2d 566,
569 (Fla. 1985) (Boyd, C.J., concurring specially) (“It means an inherent
illegality or irregularity, an abuse of judicial power, an act of judicial tyranny
perpetrated with disregard of procedural requirements, resulting in a gross
miscarriage of justice. The writ of certiorari properly issues to correct
essential illegality but not legal error.”).
“[C]learly established law” can derive from a variety of legal
sources, including recent controlling case law, rules of court,
9
statutes, and constitutional law. Thus, in addition to case law
dealing with the same issue of law, an interpretation or
application of a statute, a procedural rule, or a constitutional
provision may be the basis for granting certiorari review.
Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003). See also
City of Miami v. Blanco, 336 So. 3d 1268, 1271 (Fla. 3d DCA 2022) (“A
departure from the essential requirements of law can be demonstrated
based on statutes, rules of procedure, or case law.”); Dep’t of Corr. v.
Harrison, 896 So. 2d 868, 870 (Fla. 5th DCA 2005) (‘We agree with [Dep’t of
Corr. v. Grubbs, 884 So. 2d 1147 (Fla. 2d DCA 2004)] that the order under
review violates the separation of powers doctrine and thus departed from the
essential requirement of law[.]” (footnote omitted)); Dep’t of Child. & Fams.
v. K.R., 946 So. 2d 106, 107 (Fla. 5th DCA 2007) (“Because we conclude
that the order in question violates the separation of powers doctrine, and thus
departed from the essential requirements of law, we grant certiorari relief.”).
A.
“The cornerstone of American democracy known as separation of
powers recognizes three separate branches of government—the executive,
the legislative, and the judicial—each with its own powers and
responsibilities.” Bush v. Schiavo, 885 So. 2d 321, 329 (Fla. 2004). The
Florida Constitution mandates: “The powers of the state government shall
be divided into legislative, executive and judicial branches. No person
10
belonging to one branch shall exercise any powers appertaining to either of
the other branches unless expressly provided herein.” Art. II, § 3, Fla. Const.
This provision “encompasses two fundamental prohibitions. The first is that
no branch may encroach upon the powers of another. The second is that no
branch may delegate to another branch its constitutionally assigned power.”
Chiles v. Child. A, B, C, D, E, & F, 589 So. 2d 260, 264 (Fla. 1991) (internal
citations omitted). This case concerns the former.
“Under Florida’s constitution, the decision to charge and prosecute is
an executive responsibility, and the state attorney has complete discretion in
deciding whether and how to prosecute.” State v. Bloom, 497 So. 2d 2, 3
(Fla. 1986). See also Cleveland v. State, 417 So. 2d 653, 654 (Fla. 1982).
“[P]rosecutorial discretion is itself an incident of the constitutional separation
of powers, and that as a result the courts are not to interfere with the free
exercise of the discretionary powers of the prosecutor in his control over
criminal prosecutions.” State v. Cain, 381 So. 2d 1361, 1367 n.8 (Fla. 1980).
Accord Art. II, § 3, Fla. Const.; 7 State v. Jogan, 388 So. 2d 322 (Fla. 3d DCA
7
Article II, Section 3 of the Florida Constitution provides that "[t]he powers of the state government shall be divided into legislative, executive and judicial branches" and that "[n]o person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein."
11
1980) (holding pretrial decisions to charge and prosecute rest within the sole
discretion of the state attorney).
This prosecutorial discretion includes whether to seek the death
penalty. See Bloom, 497 So. 2d at 3 (“We conclude that the circuit judge
has no authority to interfere with the prosecutor's discretion in proceeding
with this cause as a death penalty case. If we allowed the circuit judge to
make pre-trial determinations of the death penalty's applicability, we would
be modifying the death penalty’s statutory scheme.”). Indeed, “article II,
section 3, of the Florida Constitution prohibits the judiciary from interfering
with the prosecutor’s decision to seek the death penalty in a first-degree
murder case.” State v. Donner, 500 So. 2d 532, 533 (Fla. 1987). See also
Valdes v. State, 728 So. 2d 736, 738–39 (Fla. 1999) (“This Court has long
held that as the prosecuting officer, the state attorney has complete
discretion in the decision to charge and prosecute, and the judiciary cannot
interfere with this discretionary executive function.” (citation modified)). “The
decision to charge first-degree murder and prosecute the case as a capital
offense through adjudication remains within the discretion of the state
attorney.” State v. Jones, 209 So. 3d 6, 10 (Fla. 2d DCA 2016). “The trial
courts simply have no authority to determine the applicability of the death
penalty to defendants who have not been convicted of capital felonies.” Id.
12
at 11. Cf. Jogan, 388 So. 2d at 323 (recognizing that the pretrial
prosecutorial discretion lies solely with the state attorney).
B.
Florida law sets forth how the State pursues the death penalty. “If the
prosecutor intends to seek the death penalty, the prosecutor must give notice
to the defendant and file the notice with the court within 45 days after
arraignment.” § 782.04(1)(b), Fla. Stat. (2016). See also Fla. R. Crim. P.
3.181. Once the prosecutor provides that notice, other procedural rules
come into play. See Fla. R. Crim. P. 3.112;8 Fla. R. Crim. P. 3.202; Fla. R.
Crim. P. 3.203; Fla. R. Crim. P. 3.780. But there is no stautory equivalent as
to how the death penalty is waived once sought.
With these principles in mind, we turn to the case at hand. In 2021,
the State administratively filed a notice of waiver in the court file directed to
the 2013 charges. The trial court, the parties, and the attorneys litigating the
case were not aware of its existence. They continued to litigate this as a
capital case for several years. 9
8
Florida Rule of Criminal Procedure 3.112 provides that any waiver directed to a death penalty charge is effective only if the State affirmatively makes the waiver “on the record.” Fla. R. Crim. P. 3.112(b).
9
MR WARFMAN [State]: No one at that point was believing that the State had waived. In fact, at that point the defense was continuing with their mitigation method as reflected in the docket, and the Court was under the
13
Upon being alerted to the notice, the trial court unilaterally chose to
apply the waiver as a waiver of death on all of Morris’s charges, informing
the State that it was “stuck” with its mistake because it related to the death
penalty. In doing so, the court effectively not only created the very type of
“Catch-22” or “gotcha” result this Court has long refused to endorse but also
supplanted the executive branch’s exclusive charging discretion by
extending a waiver beyond the charges to which it was directed. See
Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337, 1339 (Fla. 3d DCA
1979) (“[T]he courts will not allow the practice of the ‘Catch–22’ or ‘gotcha!’
school of litigation to succeed.”); Nelson v. State, 855 So. 2d 132, 133 n.1
(Fla. 4th DCA 2003) (same); Andreaus v. Impact Pest Mgmt., Inc., 157
So. 3d 442, 445 (Fla. 2d DCA 2015) (”The trial court should not have
rewarded this ‘gotcha’ tactic, and we will not do so here.”); Harley v. Lopez,
784 So. 2d 447, 448 (Fla. 3d DCA 1999) (refusing to reward “gotcha” tactics,
which have been “long abhorred by this court”); M–5 Commc'ns, Inc. v. ITA
Telecomms., Inc., 708 So. 2d 1039, 1039 (Fla. 3d DCA 1998) (“[R]eversal
impression it was still a death case, so everyone was acting under the assumption it was a death case.
MR RODRIGUEZ [Defense]: In fact, we didn't even know about this until 2024. That's why we continued mitigation [be]cause I asked the State look into it with your legal department.
14
is. . . mandated by an application of the anti-gotcha rule in its original and
purest form.”).
We have found no constitutional, statutory, or decisional authority that
allows a trial court to strike or overrule a prosecutor’s notice of intent to seek
the death penalty. To the contrary, the Florida Constitution provides that the
decision to charge and prosecute is an exclusively executive function, and
the state attorney has complete discretion in deciding whether and how to
prosecute. Art. V, § 17, Fla. Const. (“[T]he state attorney shall be the
prosecuting officer of all trial courts . . . .”); Bloom, 497 So. 2d at 3 (holding
the decision to charge and prosecute is an exclusively executive function,
and the trial judge did not have the authority to make a pre-trial determination
as to the applicability of the death penalty); Cain, 381 So. 2d at 1367 (holding
the discretion of a prosecutor in deciding whether and how to prosecute is
absolute in our system of criminal justice); State v. Mancuso, 355 So. 3d 942,
944-45 (Fla. 4th DCA 2023). As the Florida Supreme Court opined in Cain:
Indeed, there is considerable authority for the proposition that
prosecutorial discretion is itself an incident of the constitutional
separation of powers, and that as a result the courts are not to
interfere with the free exercise of the discretionary powers of the
prosecutor in his control over criminal prosecutions.
Cain, 381 So. 2d at 1367 n.8.
15
As relevant here, the trial court does not have the constitutional or
statutory authority to infringe on the prosecutorial function of the State
regarding the administrative waiver of death notice. Bloom, 497 So. 2d at 3
(holding the trial court has no authority to interfere with the prosecutor's
discretion in proceeding with a case as a death penalty case. “If we allowed
the circuit judge to make pre-trial determinations of the death penalty's
applicability, we would be modifying the death penalty's statutory scheme.”).
And it is the state attorney, not the trial courts, who “has complete discretion
in making the decision to charge and prosecute.” Cleveland, 417 So. 2d at
654; see also State v. Bauman, 425 So. 2d 32, 34 (Fla. 4th DCA 1982)
(“‘[T]he discretion of a prosecutor in deciding whether and how to prosecute
is absolute in our system of criminal justice.’” (footnote omitted) (quoting
Cain, 381 So. 2d at 1367)); State v. D.D.B., 737 So. 2d 1178, 1179 (Fla. 2d
DCA 1999) (concluding that trial judge did not have discretion to dismiss
criminal mischief charge against juvenile on court's own motion, and doing
so encroached upon prosecutor's authority). “The prosecutor is the only one
who has the authority to make decisions relating to the allocation of
prosecutorial resources.” State v. D.W., 821 So. 2d 1179, 1180 (Fla. 3d DCA
2002) (holding trial judges do not have the authority to participate with the
16
State in making “screening” decisions as to which cases should or should
not be prosecuted).
We find the trial court departed from the essential requirements of law
by treating a mistaken administrative filing as a binding exercise of
prosecutorial discretion. The undisputed evidence established that the
attorney who filed the waiver—who was not assigned to the case or listed as
an attorney of record—was unaware of the 2019 superseding indictment,
intended the filing only to reference the 2013 indictment, the filing bypassed
the State Attorney’s Office recommendation and review process and was
never announced in open court. 10 To be clear, no prosecutor exercising
informed discretion ever decided to waive the death penalty as to the 2019
indictment in this case.
Yet the trial court applied the waiver to those charges anyway. In doing
so, it did not enforce a prosecutorial decision but independently made one.
10
The process for evaluating a death penalty waiver begins with a death penalty evaluation prepared by the assigned ASA and presentation to the State Attorney’s Office Death Penalty Committee – composed of the SAO Chief Assistant and Deputy Chief Assistant, the Chief of the Legal Division and another member of the Legal Unit. Once the Committee makes the decision to waive, that decision is relayed to defense counsel, and in such case, the assigned prosecutor is responsible for making an oral announcement on the record advising the Court and defense counsel (and the defendant) that the death penalty is waived. That process did not occur.
17
The decision whether to seek the death penalty is committed exclusively to
the executive branch, therefore, the trial court’s unilateral extension of the
waiver to the 2019 indictment impermissibly interfered with the state
attorneys constitutionally protected prosecutorial discretion.
The trial court’s order did more than misconstrue a filing—it
transformed a document directed at one indictment into a binding waiver of
another. That intrusion into an exclusively executive function constitutes a
departure from the essential requirements of law by usurping a charging
decision reserved exclusively to the state attorney. This was a departure
from the essential requirements of the law—the express mandate of the
Florida Constitution’s separation of powers. See Harrison, 896 So. 2d at 870
("We agree with Grubbs that the order under review violates the separation
of powers doctrine and thus departed from the essential requirements of law
and that the Department may obtain review of such orders through a
certiorari proceeding." (footnote omitted)); State v. Cotton, 769 So. 2d 345,
353 (Fla. 2000) (observing that our courts have “traditionally applied a strict
separation of powers doctrine”); State v. W.D., 112 So. 3d 702, 704-05 (Fla.
4th DCA 2013) (holding the separation of powers doctrine provides that one
branch of government may not encroach upon the powers of another).
18
And so, certiorari lies. Accordingly, we grant the petition for writ of
certiorari and quash the order under review. As this case is grounded on
unusual and specific facts, we emphasize that our holding should be
narrowly construed. This case shall proceed as a capital case until and
unless the State announces a formal waiver of the death penalty on the
record as to the current charges.
Petition granted; order quashed. 11
11
While we find this matter meets the requirements for certiorari, we note that prohibition is the traditional remedy when the trial court attempts to block a prosecutor’s right to pursue the death penalty. See Bloom, 497 So. 2d at 3 (“A writ of prohibition is the appropriate remedy when a trial court attempts to interfere with the prosecutorial discretion of a state attorney.”); see also State v. Demons, 351 So. 3d 10, 16 (Fla. 4th DCA 2022); State v. Chapman, 227 So. 3d 626, 627 (Fla. 4th DCA 2017); State v. Lopez, 219 So. 3d 865, 865 (Fla. 4th DCA 2017); State v. Jones, 209 So. 3d 6, 8-9 (Fla. 2d DCA 2016). While prohibition cannot be used to revoke an order already entered, Bloom remains instructive because it recognizes prohibition as a proper remedy to thwart a trial court’s improper interference with a prosecutor’s right to pursue the death penalty.
19