County Criminal Court: CRIMINAL LAW Ė Discovery violation/Dismissal Ė State failed to properly notify the defendant in good faith of its intent to subpoena his health records. Therefore, State is not permitted to use the records in its prosecution. Judgment and sentence reversed. Coburger v. State, No. CRC 03-2 APANO, (Fla. 6th Cir.App.Ct. June 8, 2005).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

ROBERT J. COBURGER

 

††††††††††† Appellant,

 

v.                                                                                                                                                                   Appeal No. CRC 03-2 APANO

†† UCN522003AP000002XXXXCR

 

STATE OF FLORIDA

 

††††††††††† Appellee.

_____________________________/

 

 

Opinion filed __________________.

 

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Sonny Im

 

Gregory L. ďSkipĒ Olney, Esq.

Attorney for appellant

 

Cheryl Hoover, Esq.

Assistant State Attorney

 

 

ORDER AND OPINION

 

††††††††††† (J. Demers)

 

††††††††††† THIS MATTER is before the Court on the defendantís appeal from a judgment and sentence entered by the Pinellas County Court. The defendant pleaded no contest to DUI charges, reserving his right to appeal the trial courtís Order Granting Stateís Motion Requesting Medical Records. After reviewing the briefs and record, this Court reverses the Order.

The record shows that the trial court found the motion to be dispositive. Although the State contends otherwise in this appeal, the State did not raise this issue until its reply brief. A review of the record reveals that the State did not contest in the lower court the trial courtís finding that the issue was dispositive. Therefore, the issue is not one that an appellate court will review. See Phuagnong v. State, 714 So.2d 527 (Fla. 1st DCA 1998).1

††††††††††† In the lower court, the defendant moved to suppress the use of his medical records obtained pursuant to subpoena. This included any blood alcohol reading. The motion was granted because the State failed to comply with the legal requirements necessary to obtain an individualís medical records. The State, however, again sought to obtain the defendantís private and confidential hospital records. The trial court granted the Stateís request. Because this was the Stateís second request to obtain the medical records, it had to demonstrate that its earlier attempt had been made in good faith pursuant to State v. Johnson, 814 So.2d 390 (Fla. 2002). This Court remanded the matter to the trial court for an evidentiary hearing so that it could determine if the hospital records were relevant to a pending criminal investigation, and to determine if the State made a good faith effort to comply with the notice requirements of ß395.3025(4)(d), Fla.Stat. (2002). The trial court conducted the evidentiary hearing and entered an order, finding that the hospital records were relevant to a pending criminal investigation, but that the State had not made a good faith effort to notify the defendant that it was going to subpoena the hospital records. The State takes issue with the second finding. The Stateís argument, however, is not persuasive.

The State does not really defend its effort; it just argues that it was not in bad faith. What the law requires, however, is a good faith effort. This Court agrees with the trial court. One letter mailed to the defendant by regular mail to an incorrect address is not a good faith effort. The Stateís efforts do not come close to those efforts that were characterized as a good faith effort in Johnson.

In Johnson, the State used an investigator to attempt to locate the defendant. The investigator attempted to serve the defendant in person, did a neighborhood canvass and obtained information from a neighbor of the defendant that the defendant had moved to another city. The investigator then went to that city and attempted to get a current address. The investigator also tried to contact the defendantís mother and a friendís husband to get a current address. The Stateís lone effort in the case at bar pales in comparison to the Stateís efforts in Johnson. Accordingly, this Court upholds the finding of the trial court that the State failed to demonstrate a good faith effort to notify the defendant of its intent to subpoena his hospital records.

The court in Johnson held that a violation of the proper statutory procedure would not by itself require the suppression of the medical records if the Stateís first attempt to notify the defendant was made in good faith. Given the trial courtís finding upon remand, and this Courtís upholding of that decision, the trial courtís order that is the subject of this appeal (Order Granting Stateís Motion Requesting Medical Records) must be reversed. The State failed to properly notify the defendant of its intent to subpoena his hospital records, the Stateís initial effort was not done in good faith; therefore, the State is not permitted to use those records in its prosecution.

††††††††††† IT IS THEREFORE ORDERED that the judgment and sentence are reversed, and this matter is remanded to the trial court for action consistent with this Order and

Opinion.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of June, 2005.

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† __________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† David A. Demers

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ___________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Robert J. Morris, Jr.

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Irene S. Sullivan

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

cc:State Attorney

 

††††† Gregory Olney, Esq.

 

†††††† Judge Im



1 It bears noting that in a typical DUI prosecution, the blood alcohol level is not always needed. Moreover, in the case at bar the State now contends that it has another blood draw obtained from a source other than the defendantís hospital records.