IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

RHONDA WALTERS, BRITTANY POSEY,

AND B.W., A MINOR, 

Petitioner, 

v. Case No. 5D22-2462

LT Case No. UNKNOWN

STATE OF FLORIDA, 

 Respondent. 

________________________________/

Opinion filed May 19, 2023

Petition for Writ of Prohibition,

Lisa D. Herndon, Respondent Judge.

Laura K. Hargrove, of Gause &

Hargrove, PLLC, Tavares, for

Petitioner.

Ashley Moody, Attorney General,

Tallahassee, and Alyssa Marie 

Williams, Assistant Attorney

General, Daytona Beach, for 

Respondent.

PER CURIAM. 
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Rhonda Walters, Brittany Posey, and B.W., a minor, seek a writ of 

prohibition prohibiting the circuit court from holding a hearing on whether the 

State may compel production of Petitioners' medical records pursuant to 

section 395.3025, Florida Statutes (2022), under the circumstances involved 

here. Petitioners argue that the State has not properly invoked the circuit 

court's procedural jurisdiction because the State has not commenced any 

action with the court regarding obtaining these medical records. We agree 

and grant the writ without prejudice to the State to properly invoke the circuit 

court’s procedural jurisdiction.

Generally speaking, the State has the authority to summon witnesses 

and obtain documents utilizing subpoenas during an investigation pursuant 

to section 27.04, Florida Statutes (2022). However, when the State seeks a 

subpoena for medical records, patient privacy rights are implicated, and the 

State must comply with section 395.3025, which provides: 

(4) Patient records are confidential and must not be

disclosed without the consent of the patient or his or

her legal representative, but appropriate disclosure

may be made without such consent to:

(d) In any civil or criminal action, unless otherwise

prohibited by law, upon the issuance of a subpoena

from a court of competent jurisdiction and proper

notice by the party seeking such records to the

patient or his or her legal representative.

§ 395.3025, Fla. Stat. (2022).
3

The interplay between these two statutes and an individual's 

constitutional right to privacy was addressed by this Court in Hunter v. State, 

639 So. 2d 72 (Fla. 5th DCA 1994). In Hunter, the assistant state attorney 

submitted a praecipe to the clerk of court for issuance of an investigative 

subpoena duces tecum pursuant to section 27.04 seeking production of 

Hunter's hospital records following an auto accident. Id. at 73. Hunter 

received no notice of the issuance of the subpoena or its contents. Id. At the 

first hearing regarding Hunter’s motion to quash the subpoena, the State 

argued that it did not need to present any evidence or offer any testimony to 

demonstrate why the State needed the records requested in the investigative 

subpoena. Id. The subpoena was quashed after Hunter proved that the 

subpoena was issued before he received notice of it. Id. 

The State submitted a second praecipe for a subpoena and gave 

Hunter proper notice. Id. The trial court held a second hearing on Hunter's 

motion to quash, and the State maintained that it did not have to present any 

evidence as to why it needed the requested records. Id. The trial judge 

denied the motion to quash. Id. 

Hunter sought review and this Court "emphasize[d] that the state has 

the obligation and the burden to present evidence to the trial judge to 

demonstrate that a patient's confidential hospital records are relevant to a 
4

criminal investigation before the issuance of an investigative subpoena." Id. 

at 72. However, this Court upheld the trial court's ruling despite the state 

attorney's argument (or lack thereof) at the hearing, because "there was 

sufficient record evidence presented to show both a compelling state interest 

and that the medical records were relevant to a criminal investigation." Id. 

This Court ultimately held: 

[T]he . . . state attorney may use an investigative

subpoena to compel disclosure of a patient's medical

records, but the patient must first be given notice

before the subpoena is issued. If the patient objects,

the state has the obligation and the burden to show

the relevancy of the records requested; before the

subpoena for the patient's medical records is allowed

to issue.

Id. at 74. The Florida Supreme Court has also provided guidance on the 

State’s ability to access medical records through its investigative powers: 

Section 395.3025 is a legislative attempt to balance 

a patient's privacy rights against legitimate access to 

medical records. The provision begins with a 

recognition of the confidential nature of medical 

records, and subsection (4)(d) provides that before 

the records can be made available in any civil or 

criminal action, the patient must be put on notice and 

a subpoena must issue from a court of competent 

jurisdiction. The obvious purpose behind the 

notification requirement is to permit the patient to 

assert any legal objections he or she may have to the 

subpoena before the records are produced. . . . 

Based on the clear language of the statute, we hold 

that the state attorney's subpoena power under 

section 27.04, Florida Statutes (1997), cannot 
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override the notice requirement of section 

395.3025(4)(d). 

State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002). 

Thus, while it is clear based on this Court's holding in Hunter and the 

Florida Supreme Court's holding in Johnson that the State may use its 

investigative subpoena powers to obtain medical records, these powers do 

not allow the State to circumvent the requirements outlined in section 

395.3025(4)(d).

Furthermore, in the case under consideration, the State has not filed a 

civil or criminal case or judicial action of any type. Indeed, from the record 

before the Court, the State has not filed any motion or pleading with the lower 

court. The State did give Petitioners notice that it would seek to obtain their 

medical records via subpoena and when advised of Petitioners’ objections, 

the State made the request of a circuit judge’s assistant to schedule and 

conduct a hearing. When Petitioners’ counsel inquired of the judge’s 

assistant, it was confirmed that there was no case number which could be 

referenced as no case had been filed. The judicial assistant discussed 

available hearing times with counsel for Petitioners and the State. The 

petition for writ of prohibition was filed before a hearing took place.

We agree with Petitioners’ argument that the State has not invoked the 

procedural jurisdiction of the circuit court as the State has not attempted to 
6

commence any civil or criminal action by making any type of filing with the 

court, such as a motion to compel issuance of the subpoena to obtain 

Petitioners’ medical records, despite being notified of their objections. It 

does not appear that the State even filed the proposed subpoenas. See U.S. 

Bank Nat’l Ass'n v. Anthony-Irish, 204 So. 3d 57, 60 (Fla. 5th DCA 2016) ("If 

a court enters an order prior to the filing of proper pleadings, the court is said 

to lack jurisdiction."). Thus, there is nothing before the circuit court at this 

time for it to consider. We grant the writ without prejudice to the State filing 

an action or an appropriate written motion seeking issuance of the desired 

investigative subpoenas with the clerk of the court to assign a case number 

and judge or division as is done in the normal course of proceedings. A 

hearing can then be scheduled during which evidence, together with the 

parties’ positions, objections, and arguments, may be presented to the court 

for its consideration and ruling.1

PETITION GRANTED.

WALLIS, EDWARDS and HARRIS, JJ., concur.

1 See McKnight v. State, 335 So. 3d 190 (Fla. 5th DCA 2022).