FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Petition for Writ of Certiorari to the Circuit Court for
Pinellas County; Anthony Rondolino, Judge.
M. Sammis of Sammis Law Firm, P.A., Tampa, for Petitioner.
Moody, Attorney General, Tallahassee, and Blain A. Goff,
Assistant Attorney General, Tampa, for Respondent.
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."
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.
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.
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.
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
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 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.
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 considered the
motion, objection, memoranda on the admissibility of hearsay
evidence, arguments of counsel, and the entire record.
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