        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

              S.P., by and through her natural guardian R.P.,
                                 Petitioner,

                                      v.

             ANTHONY VECCHIO and the STATE OF FLORIDA,
                           Respondents.

                                No. 4D14-14

                             [October 1, 2014]

   Petition for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Charles E. Burton, Judge; L.T. Case
No. 502011CF006513AMB.

  Roberto Martinez and Latoya C. Brown of Colson Hicks Eidson, Coral
Gables, for petitioner.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher,
Assistant Attorney General, West Palm Beach, for respondent State of
Florida.

CIKLIN, J.

   S.P., a non-party child victim in a criminal case against Anthony
Vecchio, by and through her natural guardian, seeks certiorari review of a
non-final order granting Vecchio’s motion to unseal S.P.’s medical records.
We granted the petition on May 28, 2014, and now follow with this opinion.
Because compulsory disclosure of the records would violate both S.P.’s
constitutional right to privacy and her psychotherapist-patient privilege,
we grant S.P.’s petition and quash the trial court’s order requiring the child
victim to unseal her medical records.

                                  Background

   Vecchio was charged with lewd or lascivious battery, lewd or lascivious
molestation, and battery on a child. A security guard working the night
shift at a Boca Raton condominium encountered S.P., fourteen years of
age at the time, who claimed she had escaped from someone named Tony.
The guard would later state in a deposition that he saw video footage of
Vecchio kissing S.P. in one of the condominium’s elevators. S.P. was
transported to a child protection team (CPT)1 for a sexual battery exam
and a doctor with the CPT recovered semen from S.P.’s vaginal area which
was found to have come from Vecchio. The genital examination also
produced evidence of scant bleeding and blunt force trauma which was
consistent with S.P.’s version of events. During the time of the exam and
into the next morning, a Boca Raton Police Department detective
conducted an interview with Vecchio during which he admitted to
performing sexual acts with S.P. When pressed about S.P.’s age, Vecchio
denied having knowledge of her age although he guessed it to be between
eighteen and twenty years. Vecchio admitted to penetrating the victim
with his finger.

   While the criminal case against Vecchio was pending, the state filed the
declaration of Dr. Richard Jackson for the purpose of establishing S.P.’s
unavailability for Vecchio’s then upcoming criminal trial.        For the
preceding ten months, Dr. Jackson had been treating S.P. at a Utah
residential treatment center for girls. S.P. had been making progress, but
upon learning that the prosecution of Vecchio was still ongoing, suffered
a severe relapse which encompassed active suicidal ideation. In his
declaration Dr. Jackson stated:

            As a result, I decided along with my colleagues at [the
         treatment center] that S.P. immediately had to be admitted in-
         patient at a neuropsychiatric hospital in the State of Utah for
         more intensive treatment.

     Dr. Jackson also noted that S.P. was suffering from depressive disorder

1   CPTs were created by the Legislature in 1984. Ch. 84-226, Laws of Fla.

     The Children’s Medical Services Program in the Department of Health shall
     develop, maintain, and coordinate the services of one or more
     multidisciplinary child protection teams in each of the service districts of
     the Department of Children and Families. Such teams may be composed
     of appropriate representatives of school districts and appropriate health,
     mental health, social service, legal service, and law enforcement agencies.
     The Department of Health and the Department of Children and Families
     shall maintain an interagency agreement that establishes protocols for
     oversight and operations of child protection teams and sexual abuse
     treatment programs.

§ 39.303, Fla. Stat. (2014).


                                          2
NOS, anxiety disorder NOS, eating disorder NOS, as well as nightmares.
As a result of Dr. Jackson’s declaration, the state removed S.P. from its
witness list as to its prosecution of Vecchio, with an intent to rely on DNA
evidence and Vecchio’s statement to police.

    Vecchio moved to allow for issuance of subpoenas duces tecum for
S.P.’s records, including her medical, psychiatric, pharmacy, hospital, and
school records. In support of his motion, Vecchio argued that he had come
into possession of information which suggested that, prior to the incident
alleged, S.P. had been on medication, suffered from depression and an
eating disorder, and had been hospitalized twice. The state objected on
the grounds of irrelevancy, although it conceded that S.P. was using
Prozac the night of the incident, which might, the state agreed, have some
relevance with respect to sentence mitigation. The trial court granted the
motion to the extent that it would conduct an in-camera review. During
the in-camera review, the trial court found one relevant item2 and made it
available to the defense after which the records were re-sealed. Shortly
before Vecchio’s trial, the defense filed a motion to have S.P.’s medical
records unsealed, which the trial court denied without prejudice.

    On December 14, 2012, Vecchio entered an open plea of guilty to lewd
or lascivious battery, lewd or lascivious molestation and battery on a child.
Prior to the imposition of sentence, a sentencing memorandum was
prepared and offered by the state. The memorandum noted the emotional
distress the victim continued to suffer as a result of the incident. In
addition to its memorandum, the state introduced testimony from S.P.’s
sister and father who reported, among other things, that S.P. had
intentionally run into traffic while at the Utah facility; that she suffered
from nightmares and eating disorders; and that she would call her father
at all hours of the day and night telling him that she was contemplating
self-inflicted injury. The trial court sentenced Vecchio to 96 months in
prison followed by 84 months of supervision. The sentence represented a
downward departure from the 185 months that Vecchio scored under the
sentencing guidelines.

   After sentencing, Vecchio appealed from his judgment and sentence.
Before filing his initial brief, however, Vecchio moved for an extension of
time and asked this court to relinquish jurisdiction so he could request
that the trial court unseal the victim’s medical records for purposes of
raising a discovery violation issue on appeal. We granted his unopposed
motion to relinquish jurisdiction to enable Vecchio to file a motion to

2 None of the pleadings or appendix items submitted by the parties contain or
otherwise describe the one item found to be relevant by the trial court.

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unseal S.P.’s medical records.

    In accordance with our relinquishment order, Vecchio filed the instant
motion to unseal S.P.’s medical records. While arguing his motion before
the trial court, Vecchio asserted that if he had been given access to
“complete information” before he voluntarily entered his plea, he could
have made a more informed choice regarding resolution of the criminal
prosecution against him including a specific plea offer from the state.3
Vecchio argued to the trial court that if he had known all of S.P.’s mental
health information cited by the state, “his decision would have been
different,” although Vecchio offered no specificity in that regard. Vecchio
also asserted that because he was denied access to S.P.’s complete medical
record files, he was unable to properly prepare for sentencing. Vecchio
suggested to the trial court that he sought review of S.P.’s records not
necessarily to observe what was contained therein but rather to determine
what was not included in the private records and yet offered by the state
through the testimony of S.P.’s sister and father. (As Vecchio put in his
motion to unseal, “to see what has been left out on purpose.”). Should
such exclusions be apparent, Vecchio argued, then a discovery violation
would have occurred pursuant to Brady.4

   Through her natural guardian, S.P. filed her “opposition to motion to
unseal medical records,” arguing that the records are privileged and
private. She urged the trial court to deny Vecchio’s motion, particularly
because the court had already conducted a thorough in-camera inspection
of S.P.’s private and highly sensitive records and concluded all but one
item was irrelevant.

    In a written order, the trial court granted Vecchio’s motion to unseal
S.P.’s medical records and the instant petition for writ of certiorari
followed.

                                     Analysis

   Certiorari review is available to non-parties under certain
circumstances. Borck v. Borck, 906 So. 2d 1209, 1211 (Fla. 4th DCA 2005)
(quashing order compelling production of financial information of non-
parties). Additionally, certiorari is a proper vehicle to review orders
compelling the production of records that are protected by the
psychotherapist-patient privilege. Smith v. Smith, 64 So. 3d 169, 170 (Fla.

3 The terms of any proposed plea agreement offered by the state are not included
in the record provided to us.
4 Brady v. Maryland, 373 U.S. 83 (1963).


                                       4
4th DCA 2011) (citations omitted).

    S.P. argues that her medical records are protected from disclosure by
both constitutional and statutory rights to privacy, as well as the
psychotherapist-patient privilege, and as such, the trial court departed
from the essential requirements of the law by ordering their disclosure
without compelling reason. She contends that the disclosure will result in
irreparable harm to her, not remediable by appeal. Vecchio argues that
disclosure of the medical records is compelled by the potential existence
of a Brady violation.

    We agree with S.P. Her records are protected, and although confidential
clinical records may be disclosed where the court determines there is good
cause, see section 394.4615(2)(c), Florida Statutes (2013), there is no such
good cause here.

    Florida law is clear that a person’s medical records enjoy a confidential
status. First, the right to privacy contained in Article I, section 23 of the
Florida Constitution has been extended to preclude dissemination of one’s
medical records. See State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002).
Second, confidential medical records are protected from disclosure as
provided in Florida statutory law. See § 456.057(7)(a), Fla. Stat. (2013)
(providing that, with few exceptions, medical records may not be furnished
to any person other than the patient or the patient’s legal representative
or other treating health care providers, except upon written authorization
of the patient).      Third, section 90.503(2) provides that under the
psychotherapist-patient privilege, a patient has a privilege to refuse to
disclose confidential information or records made for the purpose of
diagnosis or treatment of mental conditions, including any diagnoses
made by the psychotherapist. There are only three enumerated exceptions
to the psychotherapist-patient privilege; it does not apply (1) during
involuntary commitment proceedings, (2) when there is a court-ordered
mental examination, or (3) when the patient, or a party after the patient’s
death, raises and relies on the issue of the patient’s mental condition in
litigation as part of any claim or defense. § 90.503(4), Fla. Stat. (2013).
None of those exceptions apply in this case.

   This court has consistently and repeatedly held that, absent evidence
of an applicable statutory exception or waiver, a trial court departs from
the essential requirements of law when it enters an order compelling
disclosure of communications or records in violation of the
psychotherapist-patient privilege. See Smith, 64 So. 3d at 170-71 (citing
Urbanek v. Urbanek, 46 So. 3d 1235 (Fla. 4th DCA 2010); Cruz-Govin v.
Torres, 29 So. 3d 393, 395 (Fla. 3d DCA 2010)); Palm Beach Cnty. Sch. Bd.

                                     5
v. Morrison, 621 So. 2d 464, 468 (Fla. 4th DCA 1993).

    The fact that S.P.’s ongoing psychological issues were mentioned during
Vecchio’s sentencing proceedings is not good cause for disclosure of the
records. Indeed, it is reasonable that the offenses perpetrated upon S.P.
by Vecchio would result in psychological problems for the victim. See
Floyd v. State, 18 So. 3d 432, 447 (Fla. 2009). In Floyd, the defendant had
been convicted of fatally shooting his mother-in-law. At trial, two of Floyd’s
step-children testified that they witnessed Floyd shooting the victim. One
of the issues raised by Floyd on appeal centered around the trial court’s
denial of his requests to subpoena the counseling records of the children
witnesses. Id. at 446. The Court noted that despite the psychotherapist-
patient privilege, section 394.4615(2)(c) permits court-ordered disclosure
for good cause. Nonetheless, the Court found good cause not to exist.
“Rather, it is completely reasonable, if not expected, for children who
witnessed the murder of their grandmother to have psychological issues
arising from the event.” Id. at 447.

   Based on our review of the proceedings below, the disclosure of S.P.’s
medical records, like in Floyd, would only confirm the inevitable trauma
caused by the underlying event. S.P.’s mental health issues have been
thoroughly outlined in Dr. Jackson’s declaration.         Therefore, the
statements made by S.P.’s family members during sentencing merely
echoed the obvious traumatic effect that Vecchio’s lewd molestation could
be expected to have on this minor.

    Finally, Vecchio argues that the reason he seeks to invade S.P.’s privacy
is to prove a Brady violation, which, he asserts, may have impacted his
decision to go to trial or enter a plea. In order to show there has been such
a violation however, “the defendant has the burden to show (1) that
favorable evidence, either exculpatory or impeaching, (2) was willfully or
inadvertently suppressed by the State, and (3) because the evidence was
material, the defendant was prejudiced.” Hurst v. State, 18 So. 3d 975,
988 (Fla. 2009) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

   Vecchio fails to meet his burden. And in the event that we are
understating the merits of Vecchio’s argument, Judge Burton’s thorough
in-camera inspection of the records in question has acted as a solid safety
net. His independent in-camera inspection assures us that no exculpatory
or relevant evidence was impermissibly withheld. Additionally, S.P. is not
an agent of the state, and assuming for the sake of argument that she or
her doctors did withhold relevant records, the state—under the facts of
this case—would not be liable for a willful or inadvertent suppression of


                                      6
discovery.5 Finally, Vecchio was not prejudiced. Our own review of the
record below suggests that nothing contained within the private and
confidential medical files of the victim would be of any significance to
Vecchio’s defense, particularly because his conviction was based on
independent evidence and the requisite factual basis underlying his guilty
plea.

   The crimes to which Vecchio pled guilty are strict liability crimes and
the state is not required to prove a lack of victim consent, the victim’s
motive, or mistake as to the victim’s age. The state was required to prove
the victim’s age and that Vecchio engaged in sexual acts with her. The
state’s efforts proved successful with overwhelming evidence of Vecchio’s
guilt. Based on the record before us, we specifically find that S.P.’s medical
records would be unavailing to Vecchio—disclosure will achieve nothing.

    While certain specifics of the medical records may remain unknown
out of respect for the victim’s psychotherapist-patient privilege, it has been
well documented that the victim/patient, S.P., was and has been suffering
from certain mental health issues, as Dr. Jackson meticulously detailed.
If we were to permit the trial court’s order to stand, S.P.’s privacy rights
would be irreversibly violated.

   We grant the victim’s petition and quash the trial court’s order to unseal
S.P.’s medical records.

    Petition granted.

WARNER and KLINGENSMITH, JJ., concur.

                             *        *         *

    Not final until disposition of timely filed motion for rehearing.



5 “It is well-settled that the state is charged with constructive knowledge and
possession of evidence withheld by state agents, including law enforcement
officers.” Tarrant v. State, 668 So. 2d 223, 225 (Fla. 4th DCA 1996) (citations
omitted). See also Lewis v. State, 22 So. 3d 753, 757-58 (Fla. 4th DCA 2009)
(holding that where the defendant was not aware of a statement a state witness
made during trial, the court’s Richardson hearing should have included an
inquiry into whether “the state or the police ever possessed [the witness’]
statement,” as the state is charged with constructive knowledge of evidence in
the possession of state agents).


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