Roberts v. State of Florida
5/5/23, Judge White
Topics: Writ of Certiorari; Writ of Prohibition
In this criminal case, a defendant opposed a subpoena issued by the State of Florida to obtain his medical records as part of a criminal investigation. The State filed a motion seeking leave of court to issue the subpoena under sections 395.3025 and 401.30, Fla. Stat.
At the time the State filed the motion, it had not charged Roberts with a crime. The motion alleged that Roberts was the driver of a car involved in multiple accidents and that he was taken from the scene by ambulance. The motion alleged that evidence of intoxication was detected by smell and seen and heard by a deputy sheriff who met Roberts at the hospital. The motion attached unsworn statements by the deputy and an assistant state attorney showing that the filing of a DUI charge against Roberts was imminent.
At a hearing on the motion, no witnesses testified, and no exhibits were admitted. Roberts argued that the State failed to meet its burden to show relevance or a nexus of the medical records to its investigation, but the trial court granted the motion. Roberts then filed a petition for a writ of prohibition.
The DCA noted at the outset that Roberts was seeking an order quashing the trial court’s order, but the appropriate mechanism used to quash an order is a petition for a writ of certiorari, not a writ of prohibition. The DCA opted to treat the petition as a cert petition, not a prohibition petition.
The standard for obtaining a writ of certiorari is that the petitioner must show (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 post-judgment appeal. The second and third elements (known together as the “irreparable harm” test) are jurisdictional and should be considered first.
The two statutes protect medical privacy, and the DCA quickly determined (through citation to three cases) that alleging a violation of either statute establishes irreparable harm. (Compare this to the First DCA’s opinion in Whitten v. Clark where the First DCA implied that no order to divulge the contents of a cell phone could result in irreparable harm because the party could raise the improper search, seizure, or discovery order on appeal, and the DCA specifically noted that the fact that the defendant had not yet been charged with a crime was a factor in finding a lack of irreparable harm).
In regard to whether the trial court departed from the essential requirements of law, the Court found that the State had the burden to present “evidence” showing a nexus between the records it was seeking and a criminal investigation it was conducting. Mere argument is not evidence. Attaching unsworn documents to the motion is not evidence. Thus, the order was quashed. (NOTE: It seems likely, however, that the State will simply set the matter for an evidentiary hearing, and the trial court was already inclined to accept the State’s factual assertions even when witnesses didn’t testify. Thus, the grant of the petition is likely to result in only a temporary victory).