STATE OF FLORIDA

v.

WALKER

TANENBAUM, J.

Oliver Walker currently stands charged in county court with misdemeanor battery and culpable negligence. The prosecutor in the case has now petitioned this court for a writ of certiorari, asking that we quash the trial court’s order granting Walker’s motion in limine, which had the effect of excluding from evidence at trial any mention of the extent or severity of the victim’s injuries. The victim and Walker were members of the same fraternity, and the victim had been nominated for the fraternity’s “scumbag of the week.” Carrying that title required him to be slapped by another member of the fraternity. Walker ended up being that member. According to witnesses, however, Walker did not just slap the victim; he struck the victim hard enough to cause the victim to hit his head on the floor. According to the proffered evidence, the victim ended up unconscious with a skull fracture, a traumatic hemorrhage of the cerebrum, and a missing tooth. Walker argued in the trial court that with regard to the charges that were filed, evidence of the extent of the victim’s injuries had little or no probative value and was unfairly prejudicial. He sought exclusion of such evidence pursuant to Florida Rule of Evidence 90.403, and the trial court granted his request. The prosecutor now wants this court to intervene and quash that order before the case goes to trial. The order is not a final one, nor is it an appealable nonfinal order. We nevertheless have jurisdiction to consider the order on certiorari review; if the State loses at trial because it was unable to present the excluded evidence, it will have no avenue for appellate review. See State v. Pettis, 520 So. 2d 250, 253 (Fla. 1988) (“Should the defendant be acquitted, the principles of double jeopardy prevent the state from seeking review; thus, the prejudice resulting from the earlier order would be irreparable.”).* The prosecutor suggests that exclusion of evidence showing the victim’s injuries departs from the essential requirements of law. That may be the case, but we stop short of commenting on whether the trial court should have granted Walker’s motion. This case is here on certiorari review, and that review differs from direct appellate review. See M.M. v. Fla. Dep’t of Child. & Fams., 189 So. 3d 134, 138 (Fla. 2016) (noting that “the standard of review available when a district court considers a matter by common law certiorari is much higher than when a court reviews a matter as an appeal”). The writ “is a special mechanism whereby [this court] can direct [the trial court] to send up the record of a pending case so that [we] can be informed of events below and evaluate the

* Walker cross-petitioned for review of the trial court’s denial of his motion to dismiss. Unlike the State, he has an adequate remedy via a direct appeal. We, in turn, lack jurisdiction to consider his cross-petition, which we dismiss without further comment.

proceedings for regularity.” Broward County. v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 842 (Fla. 2001) (internal quotations omitted). It is a prerogative writ that “functions as a safety net” to “halt a miscarriage of justice” when there is no other means of doing so. Id. “The writ is discretionary” and “an extraordinary remedy,” and it “never was intended to redress mere legal error.” Id. Indeed, we have the discretion to “refuse to grant a petition for common-law certiorari even though there may have been a departure from the essential requirements of law.” Combs v. State, 436 So. 2d 93, 96 (Fla. 1983). We exercise that prerogative here. On certiorari review, we are not “as concerned with the mere existence of legal error as much as with the seriousness of the error.” Id. at 95. The trial court here considered Walker’s pre-trial objection under the so-called “403-balancing test.” See § 90.403, Fla. Evid. Code (“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”). This, itself, is a discretionary call on the part of the judge: “The weighing of relevance versus prejudice or confusion is best performed by the trial judge who is present and best able to compare the two.” Sims v. Brown, 574 So. 2d 131, 133 (Fla. 1991); see also Floyd v. State, 913 So. 2d 564, 575 (Fla. 2005) (noting that a trial court’s decision on a 403-balancing test determination will not be overturned “absent a clear abuse of discretion”). One or more members of this panel may have done the weighing differently, but in our review of the limited record before us (including the arguments made at the in limine hearing), we all agree there was no error so egregious or consequential that could justify our extraordinary intervention in an ongoing criminal proceeding in the trial court. Because we exercise our prerogative to withhold a remedy on an otherwise facially sufficient certiorari petition, the petition can properly be said to be DENIED. As we noted in the margin, Walker’s cross-petition is DISMISSED. B.L. THOMAS and NORDBY, JJ., concur. _____________________________