U’DREKA ANDREWS,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

___________________________/

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D16-733

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 
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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).
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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 
4

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 attorneyclient 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), 
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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 
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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 courtappointed 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 
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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 
8

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