IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
ROBERT J. COBURGER
Appellant,
v. Appeal No. CRC 03-2 APANO
UCN522003AP000002XXXXCR
STATE OF
Appellee.
_____________________________/
Opinion filed __________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge Sonny Im
Gregory L. “Skip” Olney, Esq.
Attorney for appellant
Cheryl Hoover, Esq.
Assistant State Attorney
(J. Demers)
THIS
MATTER is before the Court on the defendant’s 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 court’s
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 court’s 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 individual’s medical records. The State, however, again sought to obtain the defendant’s private and confidential hospital records. The trial court granted the State’s request. Because this was the State’s 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 §395.3025(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 State’s 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 State’s 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 defendant’s mother and a friend’s husband to get a current address. The State’s lone effort in the case at bar pales in comparison to the State’s 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 State’s first
attempt to notify the defendant was made in good faith. Given the trial court’s
finding upon remand, and this Court’s upholding of that decision, the trial
court’s order that is the subject of this appeal (
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
__________________________
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 defendant’s hospital records.