FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Petition for Certiorari Review of Order from the Circuit
Court for Orange County, Tom Young, Judge.
P. Kelly, Assistant State Attorney, of Office of the State
Attorney, Orlando, for Petitioner.
Varet, Assistant Regional Counsel, of Office of Criminal
Conflict and Civil Regional Counsel, Casselberry, for
State seeks certiorari review of the trial court's order
granting the defendant's motion to compel the disclosure
of certain witnesses, the identities of whom the State wishes
to keep confidential. The State argues that the order is a
departure from the essential requirements of the law and
results in irreparable harm for which there is no remedy on
appeal. We agree and quash, in part, the order under review.
Henry, the defendant, is subject to ongoing prosecution for
attempted first-degree murder with a firearm, shooting into
an occupied vehicle, and possession of a firearm by a
convicted felon. Henry moved to compel disclosure of the
identities of five individuals who were listed as potential
witnesses. In the motion, Henry argued that the failure to
disclose the witnesses' identities prejudiced him because
his attorney could not determine potential conflicts.
Further, Henry asserted in a conclusory fashion that the lack
of disclosure affected his right to a speedy trial.
response to the motion, the State asserted the privilege of
nondisclosure and sought to restrict the disclosure of four
of the individuals' identities. The State indicated that
it would not call these individuals as witnesses and that
each individual had expressed concern for his or her own
safety and agreed to speak with law enforcement only in
a hearing, the trial court entered a lengthy order that
required the State to disclose the names of two of the
individuals to defense counsel and to schedule their
depositions at defense counsel's request. The order
further provided that if the individuals failed to appear for
depositions, their full contact information including
address, birthdate, and employer would be provided to Henry.
The State timely filed a petition for certiorari review.
standard of review on a petition for writ of certiorari is
whether the trial court's order constitutes a departure
from the essential requirements of law that causes material
injury throughout the lawsuit, leaving no other adequate
remedy." State Farm Fla. Ins. Co. v.
Marascuillo, 161 So.3d 493, 496 (Fla. 5th DCA 2014)
(citing Allstate Ins. Co. v. Boecher, 733 So.2d 993,
999 (Fla. 1999)).
to its privilege of nondisclosure, the State may withhold the
identity of a confidential informant. See Fla. R.
Crim. P. 3.220(g)(2). "The purpose of the privilege is
the furtherance and protection of the public interest in
effective law enforcement." Roviaro v. United
States, 353 U.S. 53, 59 (1957). "The privilege
recognizes the obligation of citizens to communicate their
knowledge of the commission of crimes to law-enforcement
officials and, by preserving their anonymity, encourages them
to perform that obligation." Id.
this privilege is not absolute and must yield if the failure
to disclose the witness's identity will infringe upon the
defendant's constitutional rights. Fla. R. Crim. P.
3.220(g)(2). Thus, the privilege will not be maintained when
the witness's identity is relevant and helpful to the
defense of the accused or where the identity is essential to
a fair determination of the cause at issue. Simmons v.
State, 887 So.2d 1283, 1284 (Fla. 2004) (citing
Roviaro, 353 U.S. at 60-61).
the State has asserted the privilege of nondisclosure, the
burden shifts to the defendant to show that the disclosure is
necessary. See State v. LaBron, 24 So.3d 715, 717
(Fla. 4th DCA 2009). Therefore, when a defendant seeks the
disclosure of a confidential witness's identity, the
defendant must allege a legally cognizable defense to the
crime charged and support the defense with sworn evidence.
See State v. Harklerode, 567 So.2d 982, 984 (Fla.
5th DCA 1990). Accordingly, "in the absence of sworn
allegations of a legally cognizable defense, a trial court is
without authority to order disclosure." State v.
Powell, 140 So.3d 1126, 1131 (Fla. 5th DCA 2014);
see also State v. Titus, 70 So.3d 763,
763-64 (Fla. 4th DCA 2011); State v. Davila, 570
So.2d 1035, 1038 (Fla. 2d DCA 1990) ("The defendant must
make a preliminary showing of the colorability of the defense
prior to disclosure. A bare allegation that failure to
disclose would impede the ability to prepare a defense is not
sufficient to require disclosure; the defense must be
supported by sworn proof." (citations omitted)).
case, Henry's motion failed to raise a legally cognizable
defense, did not include any sworn proof or an oath of any
kind, and alleged prejudice only in vague terms related to
speedy trial and the potential for a conflict. Further, at no
point did Henry assert in his motion below that failure to
disclose the witnesses would result in an unfair
determination of the cause at issue-a requirement of Rule
3.220(g)(2). Therefore, Henry failed to properly assert,
under oath, sufficient grounds to show that ...