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Cruz v. State

Florida Court of Appeals, Fourth District

August 14, 2019

NIKOLAS CRUZ, Petitioner,
v.
STATE OF FLORIDA, Respondent.

         Not final until disposition of timely filed motion for rehearing.

          Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Elizabeth Anne Scherer, Judge; L.T. Case No. 18-001958CF10A.

          Howard Finkelstein, Public Defender, and Diane M. Cuddihy, Chief Assistant Public Defender, Fort Lauderdale, for petitioner.

          Ashley Moody, Attorney General, Tallahassee, and Marc B. Hernandez, West Palm Beach, for respondent.

          Dana J. McElroy, James J. McGuire, and Daniela B. Abratt of Thomas & LoCicero PL, Fort Lauderdale, for Sun-Sentinel Company, Intervenor.

          WARNER, J.

         Nikolas Cruz petitions for certiorari review of the trial court's order denying his motion to prevent disclosure of the names of experts who may visit him in jail. We deny the petition because petitioner has not shown that the trial court's order departs from the essential requirements of law. More specifically, he failed to overcome that the jail's visitor logs are public records with no statutory exemption for the experts' names within those logs.

         Petitioner is in jail in the custody of the Broward County Sheriff, having been charged with seventeen counts of first-degree murder and seventeen counts of attempted first-degree murder. He moved for a protective order to prevent disclosure of that portion of the jail visitation logs which would reveal the names of mental health experts who may visit him, retained in connection with his defense. Petitioner acknowledged that the visitation logs were public records but offered three reasons to support his position that the actual names of visitors on them were not required to be part of that record or that they were protected from disclosure.

         First, he argued that the experts' names contained in the log should not be considered a public record because they do not fit within the purpose of the Public Records Act, which is "to open public records to allow Florida's citizens to discover the actions of their government." Bent v. State, 46 So.3d 1047, 1049 (Fla. 4th DCA 2010) (quoting Christy v. Palm Beach Cnty. Sheriff's Office, 698 So.2d 1365, 1366 (Fla. 4th DCA 1997)).

         Second, petitioner argued that disclosing the experts' names was a matter of attorney client privilege and work product, and therefore he was not required reveal them until he designated them as witnesses for trial. See Fla. R. Crim. P. 3.220.

         Third, petitioner claimed that disclosing the names would damage his right to a fair trial.

         The State and Intervenor Sun-Sentinel argued in response that the logs were public records and there was no statutory exemption under section 119.011, Florida Statutes (2018), to shield the names of an inmate's visitors. The newspaper also argued that petitioner failed to satisfy the three-part test of Miami Herald Publishing Co. v. Lewis, 426 So.2d 1 (Fla. 1982), for a trial court to restrict access to records in order to insure a defendant a fair trial.[1]

         The trial court agreed, and addressed petitioner's claim that disclosure of the logs would damage his right to a fair trial as follows:

The defense may have a myriad of experts from different specialty backgrounds visit Defendant at jail during the course of its pretrial investigation and preparation, some of whom the defense may likely use as witnesses at trial and some whom it may likely not. However, the actual communications that occur between these experts and Defendant within the jail are not subject to release as public records[.] It is merely the identities of these visitors that would be subject to public ...

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