Joseph Edward Jordan v. State of Florida

FIFTH DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                   _____________________________

                        Case No. 5D2025-1210
                  LT Case No. 2009-002872-CFAWS
                   _____________________________

JOSEPH EDWARD JORDAN,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                   _____________________________


Petition for Certiorari Review of Order
from the Circuit Court for Volusia County,
Kathryn Diane Weston, Judge.

Todd G. Scher, of Law Office of Todd G. Scher, P.L., Hollywood,
Melissa Ortiz, Miami, and Terence M. Lenamon, Fort
Lauderdale, for Petitioner.

James Uthmeier, Attorney General, Tallahassee, and Michael
W. Mervine, Senior Assistant Attorney General, Tampa, for
Respondent.


                           May 1, 2026


PER CURIAM.

    Joseph Edward Jordan seeks certiorari review of the trial
court’s order that denied his Motion to Preclude Disclosure of
Mental Health Mitigation and State’s Mental Health
Examination. He claims that the trial court’s order departed from
the essential requirements of law causing irreparable harm.

     On August 26, 2009, Jordan was arraigned for murder in the
first degree and robbery with a deadly weapon and later found
guilty in 2013. He was sentenced to death and the Florida Supreme
Court affirmed the judgment and sentence on direct appeal. In the
post-conviction phase, Jordan’s death sentence was vacated in
2017 for resentencing under Hurst v. State, 202 So. 3d 40, 63 (Fla.
2016) (holding that unanimity is required in jury verdicts that
recommend the death penalty). Jordan is currently awaiting
resentencing.

    At issue in this case is not whether the State may pursue the
death penalty in the resentencing of Jordan (it may) but whether
the State provided timely notice of its intent to seek the death
penalty such that the State is entitled to conduct a mental health
examination of Jordan under Florida Rule of Criminal Procedure
3.202.

    At the time Jordan was arraigned in 2009, rule 3.202, entitled
Expert Testimony of Mental Mitigation During Penalty Phase of
Capital Trial: Notice and Examination by State Expert, stated:

    The provisions of this rule apply only in those capital
    cases in which the state gives written notice of its intent
    to seek the death penalty within 45 days from the date of
    arraignment. Failure to give timely written notice under
    this subdivision does not preclude the state from seeking
    the death penalty.

Fla. R. Crim. P. 3.202(a) (2009) (emphasis added). The highlighted
language reflects that the State’s failure to provide timely notice
did not preclude it from seeking the death penalty; but untimely
notice would result in the State’s forfeiture of its ability to have its
own expert examination of the criminal defendant.

    In 2016, the Legislature amended section 782.04, Florida
Statutes, to “provide notice requirements the State must follow
when seeking the death penalty.” See In re Amends. to Fla. R. of


                                   2
Crim. P., 200 So. 3d 758, 758−59 (Fla. 2016) (citing Ch. 2016–13, §
2, Laws of Fla.). Due to this legislative change, rule 3.181 was
created with the intention of complementing rule 3.202, which was
amended to be consistent with the statute. See In re Amends., 200
So. 3d at 758 (“Consistent with the statutory requirements, new
rule 3.181 requires the prosecutor to give the defendant notice of
intent to seek the death penalty and to file the notice with the court
within 45 days after arraignment.”). Rule 3.181 provided:

    In a prosecution for a capital offense, if the prosecutor
    intends to seek the death penalty, the prosecutor must
    give notice to the defendant of the state’s intent to seek
    the death penalty. The notice must be filed with the court
    within 45 days of arraignment.

Fla. R. Crim. P. 3.181 (emphasis added). At the same time, rule
3.202 was amended, providing that the “rule apply only in those
capital cases in which the state gives timely written notice of its
intent to seek the death penalty.” Fla. R. Crim. P. 3.202(a)
(emphasis added).

     No question exists that the State initially failed to provide
notice within 45 days of arraignment; it did not file its notice until
February 2013, more than one thousand days after the August
2009 arraignment. As a result, the State was precluded from its
own examination of Jordan in the penalty phase of the original
proceedings; nonetheless, the penalty phase resulted in the
imposition of the death penalty. If the State had timely filed its
notice within 45 days of arraignment, it would have been allowed
to conduct its own mental health examination—but it was
successful without it.

     Shortly before the post-conviction court ruling that Jordan
was entitled to resentencing under Hurst, the State filed a new
notice of its intention to seek the death penalty. In response,
Jordan moved to preclude the State from conducting its own
mental health examination under the version of rule 3.202 that
existed at the time of Jordan’s arraignment. Under applicable
precedent, the plain language of that rule required the State to file
a notice of intent within 45 days of arraignment, such that
allowing the State to conduct its own mental health examination,


                                  3
despite filing an untimely notice, justified relief under a writ of
certiorari. See Gonzalez v. State, 829 So. 2d 277, 279 (Fla. 2d DCA
2002).

     In Gonzalez, the petitioner made the same arguments that
Jordan makes here, i.e., that the trial court’s order causes
irreparable injury and was a departure from the essential
requirements of law. Id. Faced with similar facts, the Second
District concluded that:

    [T]he trial court departed from the essential
    requirements of law by not following the clear dictates of
    rule 3.202, wherein it provides that “[t]he provisions of
    this rule apply only in those capital cases in which the
    state gives written notice of its intent to seek the death
    penalty within 45 days from the date of the arraignment.”
    (Emphasis added). To force Gonzalez to comply with the
    rule would be contrary to the plain language of the rule
    and the intent expressed by the supreme court in
    [Amends. to Fla. R. of Crim. P. 3.220-Discovery (3.202-
    Expert Testimony of Mental Mitigation During Penalty
    Phase of Cap. Trial), 674 So. 2d 83 (Fla. 1995)].

Id. at 279. The appellate court also agreed that “having to undergo
a mental examination, which the rule would require after
conviction, would cause irreparable damage that cannot be cured
on appeal from a final judgment of conviction.” Id.

     The State argues that the current version of rule 3.202 should
apply to a Hurst resentencing under the theory that the post-
conviction court’s order restarted the clock running for purposes of
timely notice under the revised rule. The State’s argument points
out that the current version of the rule states that the “provisions
of this rule [regarding mental mitigation in death penalty cases]
apply only in those capital cases in which the state gives timely
written notice of its intent to seek the death penalty.” Fla. R. Crim.
P. 3.202(a) (emphasis added). The highlighted language, according
to the State, means that it has wider latitude in providing notice,
which need only meet a generalized “timely” standard rather than
the “45 days from arraignment” standard.



                                  4
     The problem with this argument is that the Legislature has
made clear that “timely” notice, for purposes of the death penalty,
is the “45 days from arraignment” standard. It requires that all
death penalty cases follow the procedures in section 921.141,
Florida Statutes (2026), and that “[i]f 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. (2026) (emphasis added).
The highlighted and unequivocal statutory language is that the
notice must be given 45 days after arraignment. A timely notice
can be amended for good cause, but the State has not sought such
an amendment in this case. Id. (“The court may allow the
prosecutor to amend the notice upon a showing of good cause.”). In
any event, because the State did not advance good cause as a basis
for amendment in the trial court, it is not at issue in this certiorari
proceeding.

     Further buttressing that the “45 days from arraignment”
standard applies is that rule 3.181, newly adopted in 2016, states
unequivocally that the “notice must be filed with the court within
45 days of arraignment.” Fla. R. Crim. P. 3.181 (emphasis added).
The clear statutory language of section 782.04(1)(b) and the clear
language of rule 3.181 make evident that the State must give
notice within 45 days of arraignment. A generalized “timely”
standard, that allows for notice beyond 45 days from arraignment,
would directly conflict with the statute and the rule. The only
reasonable interpretation of the “timely written notice” language
in rule 3.202(a) is that written notice is timely if given within 45
days of arraignment, as section 782.04(1)(b) and rule 3.181 both
require.

     Notably, neither the Legislature by statute nor the Florida
Supreme Court in its rulemaking capacity has provided any wiggle
room for timely notice to mean anything other than 45 days from
arraignment in a capital case. As a textual matter, neither the
statute nor the rule lists any event that triggers the notice
requirement other than arraignment or its equivalent. The statute
could be amended to say that notice may be given within 45 days
of arraignment “or, if resentencing is ordered, within 45 days of
any such order.” For the State’s argument to prevail, a court would



                                  5
have to judicially interlineate this language, which would be an
expansion of the statute that is outside of its purview.

     In addition, the changes to rule 3.202 and the addition of rule
3.181 increased the State’s burden in seeking the death penalty.
Previously, the State could pursue the death penalty
notwithstanding it failed to provide the 45 days’ notice that the
rule and statute required; untimely notice meant only that the
State forfeited the ability to have the defendant examined by its
chosen mental health expert. Now, the State is required to provide
such notice within 45 days of arraignment, both to pursue the
death penalty and to have its own expert evaluate the defendant.
It would be unreasonable to adopt the broad and flexible standard
the State requests (i.e., that notice provided years after
arraignment is timely in the context of resentencing) when the
changes to the rules cut in the other direction by tightening
timeframes.

     Finally, it bears emphasis again that the State had an
opportunity to provide timely notice in the original proceeding but
failed to do so. Nevertheless, the State was able to procure the
death penalty against Jordan without the mental health
evaluation it now seeks on resentencing. At resentencing, the
State will be able to use any relevant evidence or testimony as to
Jordan’s mental health it previously used or has discovered—other
than its own mental health evaluation of Jordan, which is
precluded. The statute and rule gave the State one bite at the
apple, and it would be improper to judicially create a new
opportunity, a second bite at the apple, where the plain language
of the statute and rule establish a firm deadline.

     In summary, because the trial court’s order fails to follow the
text of the applicable statute and rule, it departed from the
essential requirements of law. Irreparable injury is established by
the nature of the compelled mental health examination. Gonzalez,
829 So. 2d at 279 (agreeing that undergoing a mental examination
would “cause irreparable damage that cannot be cured on appeal
from a final judgment of conviction”). As such, the petition for
certiorari is granted.

    PETITION GRANTED.


                                 6
MAKAR and HARRIS, JJ., concur.
EDWARDS, J., concurring with opinion.

                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________




                               7
                                          Case No. 5D2025-1210
                                LT Case No. 2009-002872-CFAWS

EDWARDS, J., concurring.

     I concur in the majority opinion and join in the suggestion that
the relevant rule should be amended to deal with the possible
failure of the State to fully comply by giving timely notice where
the disclosure and discovery procedures do not come into play
until the penalty phase, and thus, cannot reasonably be seen to
prejudice a defendant. In this case, the defendant had years and
years of notice of the State’s intent to seek the death penalty prior
to the current resentencing penalty phase. If Florida Rule of
Criminal Procedure 3.202 as currently written were the only
avenue for the State to prepare to meet a defendant’s mental
health mitigation evidence, it would turn a reasonable procedure
into a “gotcha.”

     It would seem that trial courts may have the ability to fashion
appropriate, fair procedures outside those set forth in rule 3.202.
As we know, whether interpreting a statute or rule, we adhere to
the supremacy of the text. Rule 3.202(a) states: “[t]he provisions
of this rule apply only in those capital cases in which the state
gives timely written notice of its intent to seek the death penalty.”
However, the rule is silent about what provisions for disclosure
and discovery, if any, are to be made in capital cases where the
State fails to give timely notice. In Dillbeck v. State, our supreme
court pointed out that fundamental fairness to the State and
defense requires a level playing field when it comes to obtaining
and offering evidence concerning the defendant’s mental health
and mitigation in the penalty phase. 643 So. 2d 1027, 1030 (Fla.
1994). “No truly objective tribunal can compel one side in a legal
bout to abide by the Marquis of Queensberry’s rules, while the
other fights ungloved.” Id. While it is the State that must comply
with the rules, the victims, both primary and secondary, are the
ones who may be deprived of the full measure of justice if the
circumstances otherwise compel imposition of the ultimate
penalty.




                                 8