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State v. Fahner9/19/2001
A Writ of certiorari to the Circuit Court for Dade County, Thomas Spencer, Sr., Judge.
Under Florida law, a subpoena can be issued for an individual's hospital records upon "proper notice by the party seeking such records to the patient or his or her legal representative." § 395.3025(4)(d), Fla. Stat. (Supp. 1998). In this case the State issued an investigative subpoena for the hospital records of respondent Joanne Fahner, defendant below, but defendant did not receive notice that the State had done so.
The question presented by this petition for writ of certiorari is whether the State is permitted to issue a second subpoena for the same hospital records, upon proper notice. We conclude that the answer is yes. In so ruling, we agree with the Fifth District's opinion in State v. Manney, 723 So. 2d 928 (Fla. 5th DCA 1999), and Judge Polen's dissent in State v. Rutherford, 707 So. 2d 1129, 1133-34 (Fla. 4th DCA 1997) (en banc).
I.
The State conducted an investigation of the defendant for driving under the influence ("DUI") with property damage, and reckless driving. The date of the offense was November 17, 1998.
On December 2, 1998, the assistant state attorney signed a "Notice of Investigative Subpoena for Medical Records," intended for the defendant. The notice indicated that the State would serve a subpoena in ten days on Mariners Hospital for the defendant's post-accident medical records, and that this notice was being given pursuant to section 395.3025, Florida Statutes.
According to the defendant's brief in the circuit court, "On or about December 2, 1998, the State of Florida either attempted to serve the Defendant or mail to the Defendant a Notice of Investigation Subpoena for Medical Records. The Defendant was never served with the aforesaid Notice nor was she in possession of the Notice."
On December 15, 1998, the State filed an information, and later an amended information, charging defendant with DUI and reckless driving. At some point, counsel was appointed for defendant.
At the end of December, the state served its subpoena on the records custodian of Mariners Hospital, and the hospital produced the defendant's medical records in response to the subpoena.
Defendant moved to suppress the hospital records, contending that the defendant never received notice of the State's subpoena. The county court granted the motion, but ruled that the State could re-subpoena the hospital records upon giving proper notice to the defendant.
The State issued a new subpoena and gave proper notice. The defense objected to the subpoena. Relying on the Fourth District's Rutherford decision, the defendant argued that the State cannot be given a second opportunity to subpoena the same hospital records. See Rutherford, 707 So. 2d at 1132-33. The county court instead decided to follow the Fifth District decision in State v. Manney. The county court overruled the defense objection and allowed the State to issue a second subpoena for the defendant's hospital records.
Thereafter the defendant entered into a plea agreement with the State whereby she pled guilty but reserved the right to appeal the order allowing the issuance of a second subpoena for her hospital records. The defendant appealed to the circuit court. The appeal was heard by a single circuit judge, who found the Fourth District decision in Rutherford to be more persuasive than the Fifth District decision in Manney. The circuit court thereupon reversed the conviction.
The State has petitioned this court for a writ of certiorari.
II.
The defendant initially contends that this
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