                  NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                         MOTION AND, IF FILED, DETERMINED

                                               IN THE DISTRICT COURT OF APPEAL

                                               OF FLORIDA

                                               SECOND DISTRICT


ARMAND N. PERREAULT,                           )
                                               )
              Appellant,                       )
                                               )
v.                                             )          Case No. 2D15-3817
                                               )
STATE OF FLORIDA,                              )
                                               )
              Appellee.                        )
                                               )

Opinion filed November 9, 2016.

Appeal from the Circuit Court for Pinellas
County; Philip J. Federico, Judge.

Armand N. Perreault, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Johnny T. Salgado,
Assistant Attorney General, Tampa, for
Appellee.



SALARIO, Judge.

              Armand Perreault appeals from a final order denying his motion to compel

the production of autopsy photographs relied upon by the experts at his 1991 criminal

trial but never admitted into evidence.1 The trial court reasoned that section 406.135,

Florida Statutes (2014), allowed disclosure of those photos only upon a showing of


              1
               Although this case was originally filed as a petition for a writ of certiorari,
this court subsequently converted it to a direct appeal of a final order.
good cause and upon notice to the mother of the deceased. Because section 406.135

is inapplicable to criminal proceedings, however, the trial court erred in imposing these

burdens on Mr. Perreault. Accordingly, we reverse.

              In 1991, Mr. Perreault was charged with the first-degree murder of his

eleven-month-old stepson in connection with the child's death from traumatic injuries.

Mr. Perreault defended those charges at trial, in part, on the theory that his stepson's

injuries were the result of his efforts to perform CPR on the child when he found the

child unable to breathe. A defense expert testified that the force involved in Mr.

Perreault's alleged efforts to resuscitate the child could have caused the injuries that

killed him. A rebuttal expert for the State reached the opposite conclusion. Both

experts relied on photographs of the autopsy of the child, but the photos themselves

were not admitted into evidence at the trial. The jury convicted Mr. Perreault, and he

was sentenced to life in prison.

              On August 28, 2014, Mr. Perreault filed a motion to compel the production

of the photos of the autopsy of the child. His argument was that the State's case at trial

hinged on the testimony of Dr. Joan Wood, the Pinellas County medical examiner who

testified concerning the cause of death and who had since been forced to retire as the

result of errors in several high-profile infant-mortality cases. Mr. Perreault secured the

assistance of a forensic pathologist, Dr. John Plunkett, who agreed to review the case

to determine if Dr. Wood had erred in her conclusions. Dr. Plunkett contacted the

medical examiner's office and requested several documents, including photos of the

child's autopsy. The medical examiner refused to produce the photos on the basis that

under section 406.135, they were not public record and could not be produced without

parental consent or a court order.

                                            -2-
              In his motion, Mr. Perreault argued that Dr. Plunkett needed the autopsy

photos to evaluate the cause of death and that the result of that evaluation, if favorable,

would be used to file a motion for postconviction relief based on newly discovered

evidence under Florida Rule of Criminal Procedure 3.850(b).2 Mr. Perreault also argued

that section 406.135(7) exempts criminal proceedings from its limitations on disclosure

of autopsy photos, such that neither a court order nor parental consent were necessary

for the medical examiner to provide the records. The State argued in response that Mr.

Perreault was required to obtain a court order authorizing disclosure by demonstrating

good cause, which in its view Mr. Perreault failed to do.3

              The trial court denied Mr. Perreault's motion. It determined that section

406.135(4) required Mr. Perreault to obtain a court order authorizing disclosure of the

autopsy photos and to show good cause to get one. It also concluded that Mr. Perreault

failed to show good cause because his motion failed "to elaborate on the similarities

between his [case] and any other cases [involving Dr. Wood] which have been

reversed" or to explain why further review of his case was necessary when Dr. Wood's

successor at the medical examiner's office was aware of Mr. Perreault's case. The


              2
              Attached to the motion were Dr. Plunkett's curriculum vitae and affidavits
from Dr. Plunkett and Mr. Perreault. Dr. Plunkett attested, among other things, that it
was possible that the CPR attempts could have caused the fatal injuries.
              3
                 The medical examiner filed a paper in the trial court stating that it did not
object to producing the photos to Dr. Plunkett but that it deferred to the State's request
that the trial court deny the motion. In light of the medical examiner's lack of objection,
we do not consider whether a motion filed in a criminal case to which autopsy photos
are relevant—as distinguished, for example, from an action to enforce an obligation to
produce public records pursuant to section 119.11, Florida Statutes—is the proper way
to obtain review of a county medical examiner's refusal to produce autopsy photos.
Because Mr. Perreault has not raised the issue, we also do not consider what, if any,
standing the State has to contest his request that the medical examiner produce such
photos.

                                             -3-
court also focused on the fact that during previous attempts by Mr. Perreault to obtain

the autopsy photos, the victim's mother had not agreed to release them. The court

further held that Mr. Perreault was required to provide notice to the child's mother under

section 406.135(5) but failed to demonstrate that he had done so. The court did not

address Mr. Perreault's argument that section 406.135(7) exempts criminal proceedings

from the requirements of section 406.135. Mr. Perreault now raises that same issue on

appeal, and we conclude that he reads the statute correctly.

              The legislature adopted section 406.135 in 2001 in response to efforts by

the media to compel a medical examiner to release autopsy photographs of NASCAR

driver Dale Earnhardt over the objections of his family. See generally Campus

Commc'ns, Inc. v. Earnhardt, 821 So. 2d 388, 392 (Fla. 5th DCA 2002). It provides that

autopsy photos are confidential and exempt from disclosure under chapter 119, Florida

Statutes—the Public Records Act—except that they may be made available to certain

surviving family members and to government agencies for limited purposes.

§ 406.135(2), (3)(b). The statute prohibits the custodian of autopsy photographs from

allowing access to any person other than the family members and government agencies

the statute specifies unless authorized by court order and punishes willful and knowing

violations of that prohibition as a third-degree felony. § 406.135(3)(c), (6)(a).

              A court order authorizing access by someone other than a specified family

member or government agency may issue only upon a showing of good cause by the

person seeking access. § 406.135(4)(b). In determining whether good cause has been

shown, the court must consider certain factors specified by the statute, including the

seriousness of the intrusion into the family's right of privacy. Id. In addition, a person

seeking an order allowing disclosure must provide notice to certain family members

                                            -4-
specified in the statute so that they may have the opportunity to be heard in court before

a decision about disclosure is made. § 406.135(5).

              Subsection (7) of the statute, however, exempts criminal and

administrative proceedings from these requirements. It provides as follows:

              A criminal or administrative proceeding is exempt from this
              section, but unless otherwise exempted, is subject to all
              other provisions of chapter 119, provided however that this
              section does not prohibit a court in a criminal or
              administrative proceeding upon good cause shown from
              restricting or otherwise controlling the disclosure of an
              autopsy, crime scene, or similar photograph or video or
              audio recordings in the manner prescribed herein.

§ 406.135(7) (emphasis added). The statutory term "this section" means what it plainly

says: all of section 406.135. See, e.g., Fla. Dep't of Envtl. Prot. v. ContractPoint Fla.

Parks, LLC, 986 So. 2d 1260, 1265 (Fla. 2008) ("In interpreting [the statute at issue], . . .

we cannot read [a] subsection . . . in isolation, but must read it within the context of the

entire section . . . ."); Dep't of Revenue v. Cent. Dade Malpractice Trust Fund, 673 So.

2d 899, 901 (Fla. 1st DCA 1996) ("There can be no doubt that the Legislature, by using

the term 'this section,' meant the whole of [the statute at issue]."). That being the case,

subsection (7) exempts criminal proceedings from section 406.135's requirement that

disclosure to a person other than a specified family member or government agency be

authorized by court order supported by good cause. This disclosure of autopsy photos

might still be disallowed if a provision of chapter 119 so states, and a court might,

pursuant to subsection (7), restrict or control the disclosure of autopsy photos upon a

showing of good cause for such restrictions or controls. But in a criminal proceeding,

section 406.135 does not require that a person seeking disclosure get a court order,




                                            -5-
show good cause, or provide notice to the family members specified in the statute

before obtaining access to the photographs.

              We interpreted subsection (7) in this way in Sarasota Herald-Tribune v.

State, 924 So. 2d 8 (Fla. 2d DCA 2005). There, various media organizations sought

disclosure of the autopsy photos of a child murder victim that had been introduced into

evidence in a criminal trial but as to which the trial court, relying on section 406.135, had

barred the media from access. Id. at 10-11. We explained that section 406.135 could

not support the trial court's decision to preclude the media from accessing the photos

because the case was a criminal proceeding exempt from the provisions of that statute

pursuant to subsection (7). Id. at 13. We noted that subsection (7) does not prohibit a

trial court from restricting or controlling the disclosure of such photos, but we concluded

that "section 406.135 does not render these court exhibits confidential. If any statute

accomplishes that act, it must be a provision in chapter 119."4 Id. at 14.

              In this case, Mr. Perreault filed a motion seeking disclosure of the autopsy

photos relied upon by the experts in his criminal trial in service of a contemplated

motion to challenge his conviction under rule 3.850. We are therefore dealing with a

proceeding brought under the rules of criminal procedure, and the State does not

dispute that the request here relates to a criminal proceeding. Cf. Fla. R. Crim. P. 3.010

(stating that the Florida Rules of Criminal Procedure apply "in all criminal proceedings in


              4
                Because the autopsy photos were filed with the court as trial exhibits, we
also observed that Florida Rule of Judicial Administration 2.051, governing records of
the judicial branch, might provide a basis for denying disclosure. Sarasota Herald-
Tribune, 924 So. 2d at 13-14, 15-16. The relevant rule is now codified as rule 2.420.
Our record does not disclose whether the autopsy photos here were filed with the court.
At all events, because the request for the photos was directed to the county medical
examiner and not the court, we need not consider whether rule 2.420 provides a basis
for denying disclosure.

                                            -6-
the state courts including . . . proceedings under rule 3.850" (emphasis added)); Hall v.

State, 752 So. 2d 575, 578 (Fla. 2000) (holding that a motion for postconviction relief is

a "collateral criminal proceeding"). Mr. Perreault's effort to obtain copies of the relevant

autopsy photos is thus exempt from the requirements of section 406.135. The trial court

erred as a matter of law when it denied his motion to compel based on his purported

failure to show good cause and give notice to the child's mother. See Hernandez v.

State, 16 So. 3d 336, 339 (Fla. 4th DCA 2009) ("[W]here a trial judge fails to apply the

correct legal rule . . . the action is erroneous as a matter of law. This is not an abuse of

discretion. The appellate court in reviewing such a situation is correcting an erroneous

application of a known rule of law." (quoting Canakaris v. Canakaris, 382 So. 2d 1197,

1202 (Fla. 1980))); Vaughn v. State, 711 So. 2d 64, 66 (Fla. 1st DCA 1998).

              Accordingly, the trial court's order denying Mr. Perreault's motion to

compel production of the autopsy photos is reversed. The case is remanded to the trial

court for further proceedings consistent with this opinion, which proceedings may

include consideration of any argument by the State based on chapter 119 or

consideration of whether there is good cause for the imposition of restrictions or controls

on disclosure under section 406.135(7).

              Reversed and remanded.


CASANUEVA and SLEET, JJ., Concur.




                                            -7-
