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


                                                 IN THE DISTRICT COURT OF APPEAL

                                                 OF FLORIDA

                                                 SECOND DISTRICT



LADIMIR LEKA,                                    )
                                                 )
               Petitioner,                       )
                                                 )
v.                                               )       Case No. 2D18-5095
                                                 )
STATE OF FLORIDA,                                )
                                                 )
               Respondent.                       )
                                                 )

Opinion filed October 2, 2019.

Petition for Writ of Certiorari to the Circuit
Court for Pinellas County; Anthony
Rondolino, Judge.

Leslie M. Sammis of Sammis Law Firm,
P.A., Tampa, for Petitioner.

Ashley Moody, Attorney General,
Tallahassee, and Blain A. Goff, Assistant
Attorney General, Tampa, for Respondent.




BLACK, Judge.

               Ladimir Leka seeks certiorari review of the trial court's order granting the

State's request to subpoena his medical records. We grant the petition and quash the
November 28, 2018, "Order Granting Motion to Request Subpoena Duces Tecum for

Medical Records of Ladimir Leka."

              In August 2018, the State filed a "Motion to Request Subpoena Duces

Tecum for Medical Records of Ladimir Leka." Because there was no pending criminal

action against Leka, the motion was docketed as an "order to show cause" case. In the

motion, the State cited sections 395.3025 and 456.057, Florida Statutes (2018), as the

bases for the request for Leka's medical records. The State acknowledged the privacy

of patient medical records but contended that the right to privacy may be overcome

where the State establishes that "there is a reasonable founded suspicion that the

material contain[s] information relevant to an ongoing criminal investigation." The

motion provided that the State had notified Leka that a subpoena for his medical

records would be issued unless he objected, see §§ 395.3025(4)(d), 456.057(7)(a)(3);

Leka then objected, necessitating a hearing.

              In September 2018, Leka filed a "Notice of Objection" in the show cause

case. Leka noted that the State's motion referenced medical records, Bayfront Medical

Center, "a criminal investigation," and named a St. Petersburg Police Department officer

but that it did not indicate a time, date, or place of any alleged conduct by Leka that

would give rise to a criminal investigation; the nature of the criminal allegation; which

medical records were sought to be produced; and how any alleged criminal action

related to Leka's medical records. The notice also provided that Leka had not been

arrested or cited for any offense. Leka contended that the notice provided by the State

was legally insufficient.




                                            -2-
              The initial hearing on the State's motion was continued after Leka

successfully argued that he had not received a copy of the proposed subpoena. At the

subsequent hearing, Leka again objected to moving forward because he had yet to

receive a copy of the proposed subpoena. The hearing transcript indicates that counsel

was then provided with the proposed subpoena, and she objected to it as overly broad,

requesting "all medical records and treatment," including blood analysis, toxicology

analysis, and physicians' names, for a specific date but without limitation, explanation,

or relevancy. The specific date was not noted on the record, and the proposed

subpoena was not filed with the court or admitted into evidence. Counsel further argued

that she was objecting to the issuance of the subpoena for all of the reasons stated in

the notice, including that the State had no compelling interest in Leka's medical records.

              The State called Officer Alli to testify. The officer testified that he was

employed by the St. Petersburg Police Department. As part of the DUI unit he was

called to a traffic accident involving two vehicles on December 9, 2017. Over a hearsay

objection, Officer Alli testified that while he was en route to the scene, the investigating

officer on scene advised Officer Alli that "the suspected driver" of one of the vehicles

was being transported to Bayfront Medical Center. The same officer also advised

Officer Alli that he had "detected signs of impairment" in the suspected driver. Officer

Alli then proceeded to Bayfront Medical Center.

              Upon arrival, Officer Alli saw that "the Defendant was in one of the trauma

rooms." At no time did Officer Alli identify Leka as the man he had seen in the trauma

room or as "the Defendant" to whom he referred. There was no testimony as to how

Officer Alli knew that the person he saw was the suspected driver of the vehicle, and at




                                            -3-
no time was Leka identified as the suspected driver. Over objection, Officer Alli testified

that medical personnel informed him that "the Defendant was physically resisting them

and yelling 'No blood for police, no blood for police,' as soon as they attempted to help

him" and that subsequently the man had been sedated. Officer Alli testified that he had

been "close enough to the Defendant [to see] his eyes were slightly open" and notice

"they were bloodshot red and watery still"; the officer also "detect[ed] the odor of

alcoholic beverage" on the man's breath. Over multiple objections, including hearsay

and violation of section 316.1933(2)(a), Florida Statutes (2018), Officer Alli testified that

medical personnel advised him that "the Defendant" had a blood alcohol level of .423.

Officer Alli further testified that upon speaking with an unidentified officer at the scene of

the traffic accident, he had been told that "the Defendant's girlfriend" was a passenger

in the vehicle that "the Defendant was driving." The officer confirmed that no citations

had been issued.

              There was no additional testimony or evidence submitted to the court. No

probable cause affidavit or police or crash report was discussed or introduced into

evidence. During arguments, the court noted that there was "very, very limited

presentation that [was] un-objected to firsthand knowledge of the witness" such that "the

officer's personal knowledge facts" did not create the necessary nexus that the State

was required to establish. The court went so far as to say that the State was "dead in

the water if the hearsay is excluded." Taking the motion under advisement, the court

requested submissions from both sides as to whether it could consider hearsay in

determining whether the State had met its burden. On November 28, 2018, the court

entered its order granting the motion for a subpoena duces tecum, noting that it had




                                             -4-
considered the motion, objection, memoranda on the admissibility of hearsay evidence,

arguments of counsel, and the entire record.

              In his petition to this court for a writ of certiorari, Leka contends that the

trial court departed from the essential requirements of law by granting the State's motion

without requiring the State to establish a nexus between the requested records and any

ongoing criminal investigation or criminal proceeding.1

I.     Certiorari Standard

              Orders granting the State's requests for the subpoena of medical records

pursuant to sections 395.3025 and 456.057 have been reviewed by petitions for writ of

certiorari by this court and others. See, e.g., Gomillion v. State, 267 So. 3d 502, 506

(Fla. 2d DCA 2019); Faber v. State, 157 So. 3d 429, 430 (Fla. 2d DCA 2015); Ussery v.

State, 654 So. 2d 561, 562 (Fla. 4th DCA 1995); Hunter v. State, 639 So. 2d 72, 72

(Fla. 5th DCA 1994). Subpoenas for patient medical records grant access to materials

which have been recognized as private and protected by the Florida Constitution. Mullis

v. State, 79 So. 3d 747, 751 (Fla. 2d DCA 2011) ("Individuals enjoy a right of privacy in

their medical records under article I, section 23, of the Florida Constitution." (citing State

v. Johnson, 814 So. 2d 390, 393 (Fla. 2002))). And although "[t]he right to privacy is not

absolute and will yield to compelling governmental interests," Johnson, 814 So. 2d at

393, a violation of the constitutional right—and in this case, a violation of either

statute—causes immediate harm which is irremediable on postjudgment appeal, see




              1Leka also argues that the trial court deviated from the law by relying on
inadmissible hearsay testimony, including statements allegedly made by a treating
physician regarding the patient's blood alcohol level. Because the first argument raised
by Leka necessitates the granting of his petition, we decline to reach the second issue.


                                             -5-
Gomillion, 267 So. 3d at 506 ("It has long been recognized that a trial court order

permitting discovery of information that is privileged or otherwise legally protected as

private causes an immediate injury that success in a postjudgment appeal is unable to

fix.").

              Sections 395.3025 and 456.057 each represent a " 'legislative attempt to

balance a patient's privacy rights against legitimate access to' the patient's medical

information." See State v. Sun, 82 So. 3d 866, 870 (Fla. 4th DCA 2011) (quoting

Johnson, 814 So. 2d at 393); accord Mullis, 79 So. 3d at 751 n.6. In pertinent part,

section 456.057 provides:

              Except as otherwise provided in this section and in s.
              440.13(4)(c), [medical] records may not be furnished to, and
              the medical condition of a patient may not be discussed with,
              any person other than the patient, the patient's legal
              representative, or other health care practitioners and
              providers involved in the patient's care or treatment, except
              upon written authorization from the patient. However, such
              records may be furnished without written authorization . . .
              [i]n any civil or criminal action, unless otherwise prohibited
              by law, upon the issuance of a subpoena from a court of
              competent jurisdiction and proper notice to the patient or the
              patient's legal representative by the party seeking such
              records.

§ 456.057(7)(a)(3). Similarly, section 395.3025 provides, in relevant part:

              Patient [hospital] records are confidential and must not be
              disclosed without the consent of the patient or his or her
              legal representative, but appropriate disclosure may be
              made without such consent . . . [i]n any civil or criminal
              action, unless otherwise prohibited by law, upon the
              issuance of a subpoena from a court of competent
              jurisdiction and proper notice by the party seeking such
              records to the patient or his or her legal representative.

§ 395.3025(4)(d).




                                           -6-
               We note that of the certiorari cases discussing a subpoena ordering

production of medical records, almost all of them indicate that a criminal action had

been pending against the patient whose medical records were sought prior to the

State's request for a subpoena. See, e.g., Gomillion, 267 So. 3d at 504; Faber, 157 So.

3d at 430; Tyson v. State, 114 So. 3d 443, 444 (Fla. 5th DCA 2013); cf. State v. Rivers,

787 So. 2d 952, 953 (Fla. 2d DCA 2001) (reviewing by petition for writ of certiorari an

order denying the State's motion for authorization to execute a subpoena for medical

records where the defendant had been charged with DUI causing serious bodily injury).

However, in at least one case an order granting the State's request for a subpoena of

medical records was addressed via certiorari review where charges had not been filed

and no proceeding was pending. Hunter, 639 So. 2d at 72. In the case before us—

where a criminal action is not pending and the trial court was operating under existing

case law—the injury to the petitioner and the complete lack of a remedy through appeal

are more significant than in those instances where charges have been filed and an

action is pending. See Limbaugh v. State, 887 So. 2d 387, 391 (Fla. 4th DCA 2004)

("Owing to the nature of the right asserted, [the right of privacy in medical records,] and

the absence of any pending case against petitioner in which he might raise the issue,

we deem the nature and context of the right asserted important enough to exercise our

discretion in favor of review [by second-tier certiorari] at this point."). Thus, we exercise

our certiorari jurisdiction in this case.

II.    Nexus

               Having determined that we should exercise our certiorari jurisdiction, the

next issue we must address is whether the trial court departed from the essential




                                            -7-
requirements of law in granting the State's request for issuance of the subpoena. In

addition to procedural requirements within the statutes, Florida law requires that before

a subpoena for the production of medical records may issue, the State must establish

that it has a compelling interest in the records. See Johnson, 814 So. 2d at 393 ("[I]n

reviewing a claim of unconstitutional governmental intrusion, the compelling state

interest standard is the appropriate standard of review."). "[T]he control and

prosecution of criminal activity is a compelling state interest" when the State has

established "a clear connection between illegal activity and the person whose privacy

has allegedly been invaded." Id. The State's burden of proving that "clear connection"

in cases involving sections 395.3025 and 456.057 has been described as establishing

the relevancy of the requested medical records to the civil or criminal action or as

proving the nexus between the two. See, e.g., Faber, 157 So. 3d at 430-31. Leka

contends that the trial court failed to apply the law requiring the State to establish a

nexus between the requested records and an ongoing criminal action or criminal

investigation.

                 Here, at the hearing in the show cause case, the State did not introduce

an accident report or a probable cause affidavit; nor did the State argue the relevancy of

the requested medical records to a criminal action. In fact, there is nothing in the record

specifying which records the State was seeking. Although the State presented the

testimony of Officer Alli, his testimony was largely hearsay and those statements which

were not hearsay did little to connect Leka to either the accident Officer Alli had been

investigating or to the man Officer Alli observed in the hospital. The trial court even

noted: "I think the first step, you know, you've got to have the guy behind the wheel.




                                             -8-
So, as I perceive the facts as testified by the witness, he was told that this was the

driver of the vehicle who was taken to the hospital. And so, that's hearsay." Officer

Alli's hearsay testimony did make it apparent that the State was, at least in part, seeking

Leka's medical records for purposes of investigating an uncharged DUI despite the

State's failure to so argue. But because there is no subpoena in the record and no

subpoena has been executed, neither Leka nor this court knows which medical records

the State is seeking or what their relevancy may be. Cf. Cerroni v. State, 823 So. 2d

150, 151 (Fla. 5th DCA 2002) (indicating that the State was requesting medical records

which "pertain[ed] to the blood sample taken from [Cerroni] subsequent to a vehicular

accident" (alterations in original)); Ussery, 654 So. 2d at 562 (indicating that the State

was seeking "medical records of [Ussery's] hospitalization for injuries received in the

accident, particularly the results of tests of blood taken for purposes of medical

treatment"). Moreover, the record does not indicate that the trial court was aware of

which records the State was seeking.

              [T]he cases have required that the State show a "nexus"
              between the medical records the State seeks and some
              material issue in the case by (1) identifying some theory that
              reasonably makes the records relevant and (2) producing
              some evidence that makes it reasonable to expect that the
              records will produce evidence that supports the theory.

Gomillion, 267 So. 3d at 507. In considering the request for a subpoena for medical

records, "the court can rely on the State's argument and the accident report or probable

cause affidavit to establish relevance." Guardado v. State, 61 So. 3d 1210, 1213 (Fla.

4th DCA 2011) (citing McAlevy v. State, 947 So. 2d 525, 529 (Fla. 4th DCA 2006)).

Here, the State neither identified the records sought nor argued the relevancy of the

records requested to a criminal action, much less to a theory or material issue in the



                                            -9-
case. Cf. Tyson, 114 So. 3d at 445 ("[T]he State did not present evidence to establish

relevancy. . . . Tyson's medical records do not relate to any element of the charged

offense."). The State's evidence, regardless of its admissibility, failed to establish a

nexus between the requested medical records and any criminal action; there were "no

police reports, arrest affidavits, or other documents" presented to the court, and the

testimony of Officer Alli was insufficient. See Guardado, 61 So. 3d at 1214

(distinguishing Hunter on the basis of evidence presented).

              The trial court failed to require the State to present a nexus and to itself

consider that nexus—"whether the records sought were directly related to the

circumstances surrounding the charges." See Faber, 157 So. 3d at 431; cf. Rivers, 787

So. 2d at 953-54 (holding that the right to privacy was overcome where the records

sought by the State "were directly related to the incident which led to the charges

against Rivers"). As in Faber, there is nothing in the record indicating the scope of the

records requested or that those records would be examined in camera by the trial court.

Id. As in Gomillion, there is an "absence" of argument from the State; there was no

assertion that Leka's records were relevant to charges against Leka. See Gomillion,

267 So. 3d at 508 (distinguishing Hunter and McAlevy and stating that "the State

advanced no theory that made the medical record relevant to any substantive issue in

the case"). Simply stated, "[s]ince there is no nexus between [a] criminal prosecution

and [Leka's] medical records, the trial court departed from the essential requirements of

law in permitting the State to subpoena all of [Leka's] medical records." See Tyson, 114

So. 3d at 445.

III.   Conclusion




                                           - 10 -
              The petition for writ of certiorari is granted, and the order granting the

State's request for a subpoena is quashed. Where a subpoena is sought as part of a

civil or criminal action, the court departs from the essential requirements of law when it

grants the subpoena request in the absence of argument connecting the requested

medical records to an issue in the action, documentary evidence and other evidence

supporting the relevancy of the medical records to the action, and consideration of the

scope of the records requested in the proposed subpoena. We note that the State is

not precluded from seeking Leka's medical records through a subpoena in a future

action. See Guardado, 61 So. 3d at 1214; see also Gomillion, 267 So. 3d at 509

("[N]othing about our disposition prevents the State from seeking to subpoena such

medical records [in the criminal case] where it has shown or can in the future show the

requisite nexus.").

              Petition for writ of certiorari granted; order quashed.

NORTHCUTT and LUCAS, JJ., Concur.




                                           - 11 -
