NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

GEORGE GOMILLION, DOC #R44747, )

)

Petitioner, )

)

v. ) Case No. 2D18-1640

)

STATE OF FLORIDA, )

)

Respondent. )

)

Opinion filed March 20, 2019.

Petition for Writ of Certiorari to the Circuit 

Court for Pinellas County; Nancy Moate 

Ley, Judge.

Ron Smith, Largo, for Petitioner.

Ashley Moody, Attorney General, 

Tallahassee, and Michael Schaub, 

Assistant Attorney General, Tampa, for

Respondent.

SALARIO, Judge.

George Gomillion has filed a petition for a writ of certiorari asking us to 

quash an order denying his objection to the State's subpoena of his toxicology records 

for purposes of his criminal prosecution. He asserts that the records are protected as 

private by article I, section 23 of the Florida Constitution. We agree that the State failed 

to prove that the toxicology records are relevant to an ongoing criminal investigation—in 
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this case, the only way in which it could overcome Mr. Gomillion's constitutional privacy 

right—which warrants relief. We grant the petition and quash the order as it relates to 

that portion of the subpoena seeking the toxicology records.1 

The underlying facts are as follows. On February 23, 2017, a vehicle rearended a taxi on U.S. 19 in Pinellas County. The taxi driver and her passenger were 

seriously injured. The driver of the rear vehicle fled. Nobody saw the wreck happen. 

Someone did, however, see a man fitting Mr. Gomillion's description running from the 

scene. With a dog's help, Pinellas County Sheriff's deputies found Mr. Gomillion hiding 

under a trailer not too far away. DNA was recovered from the rear vehicle's airbag, 

which had deployed during the accident, and it was a match to Mr. Gomillion. 

On March 13, 2017, the State filed an information charging Mr. Gomillion 

with one count of leaving the scene of an accident, see § 316.027(2)(a), Fla. Stat. 

(2016), and one count of carelessly or negligently causing serious bodily injury while 

driving on a canceled, suspended, or revoked license, see § 322.34(6)(b), Fla. Stat. 

(2016). As the case headed toward trial, the State notified Mr. Gomillion that it planned 

to subpoena medical records regarding treatment he received at Bayfront Medical 

Center after the crash. The proposed subpoena requested: 

ABSTRACT VERSION OF MEDICAL RECORDS OF 

DIAGNOSIS AND TREATMENT OF PATIENT GEORGE 

GOMILLLION . . . TO INCLUDE BUT NOT LIMITED TO: 

BLOOD ANALYSIS, TOXICOLOGY ANALYSIS INCLUDING 

THE NAMES OF ALL TREATING PHYSICIANS AND 

NURSES AS WELL AS THE INDIVIDUALS THAT TOOK 

1Mr. Gomillion also challenges the trial court's order insofar as it denies his 

objection to a portion of the subpoena that seeks diagnostic and treatment records. 

Because the State sufficiently demonstrated that those records are relevant to the 

disputed issue of identity, among other things, we take no issue with that portion of the 

trial court's order. The State may seek to subpoena those records, and Mr. Gomillion's 

petition is otherwise denied as it relates thereto. 
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THE BLOOD/URINE AND TESTED THE BLOOD/URINE 

SAMPLES . . . . [and] THE OBSERVATIONS AND NOTES 

OF ALL TREATING PHYSICIANS AND NURSES.

Mr. Gomillion filed an objection to the subpoena in which he argued that it impinged on 

his right to privacy under article I, section 23 because his toxicology records were not 

relevant to an ongoing criminal investigation. 

The trial court conducted a hearing on Mr. Gomillion's objection, at which 

the State submitted two pieces of evidence without objection: (1) the arrest affidavit 

executed by one of the arresting deputies and (2) a recording of a telephone call Mr. 

Gomillion placed from jail to a man named Demetrius Gray. The State contended that 

portions of the recorded call would provide a reasonable basis to expect that the 

toxicology records would reveal evidence that Mr. Gomillion was under the influence of 

drugs or alcohol at the time of the crash: 

Mr. Gomillion: I'm trying to figure that out cause I got -- all I 

got is traffic violations, leaving the scene --

Mr. Gray: I know. Okay.

Mr. Gomillion: -- of a crash, and uh, --and, uh, driving while 

my license was suspended. That's it, but then they got this 

VOP on me, too. 

Mr. Gray: Yeah. 

Mr. Gomillion: So, um, but the other thing -- 

Mr. Gray: You know. So, they ain't hit you with no DUI? No 

shit like that?

Mr. Gomillion: Nu-uh. Nah. Nah. Nah. But what I'm trying to 

-- 

Mr. Gray: Alright, bitch, you straight now. 

. . . . 
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Mr. Gray: Don't even be talking like that, bro. Don't even 

get on that. We ain't even get on that conversation right 

now. That's not even how we fixing to talk. It's looking 

good. It ain't even as bad as I thought. I thought it would be, 

you know -- you know, DUI, all of that shit --

Mr. Gomillion: The whole shebang.

Mr. Gray: --which I know you ain't drinking. Yeah. So, this 

is already looking better, you see? (Unintelligible). Know 

what I'm saying? 

Mr. Gomillion: Yeah. Yeah. It's just the driving and -- and -- 

and, uh, leaving the scene.

(Emphasis added.) The State claimed that evidence of Mr. Gomillion having been 

intoxicated at the time of the crash would be relevant for impeachment purposes were 

he to take the stand at trial and testify that he was not the driver. 

 The trial court overruled the objection and allowed the subpoena. It stated 

that it did not believe the toxicology records were relevant to the possibility of charging 

Mr. Gomillion with another offense—presumably driving under the influence—but that 

they were relevant for purposes of impeaching Mr. Gomillion at trial. The trial court 

acknowledged the very real possibility that Mr. Gomillion would decline to testify at all, 

but it reasoned that in the event he did testify, the toxicology records, if they showed 

that Mr. Gomillion was impaired, would go to his ability to recall and relate the events 

leading up to the wreck and his alleged fleeing the scene. Mr. Gomillion now seeks 

relief by way of certiorari from the order denying his objection.2 

We may grant a writ of certiorari when presented with a trial court order 

that "departs from the essential requirements of law, causing material injury to a 

2The trial court stayed the issuance of the subpoena pending the outcome 

of these proceedings.
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petitioner throughout the remainder of the proceedings below and effectively leaving no 

adequate remedy on appeal." Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 

1995). The requirements of material injury and the absence of an adequate appellate 

remedy are jurisdictional, so we must deal with them before delving into whether the 

trial court's order departed from the essential requirements of law. See Montanez v. 

State, 24 So. 3d 799, 801 (Fla. 2d DCA 2010).

It has long been recognized that a trial court order permitting discovery of 

information that is privileged or otherwise legally protected as private causes an 

immediate injury that success in a postjudgment appeal is unable to fix. See Langston, 

655 So. 2d at 94. The idea is that this is "cat out of the bag" information; once it is 

disclosed, there is no adequate way to repair the damage to the legally-recognized 

privilege or privacy interest of the party injured by the disclosure. See Allen v. State 

Farm Fla. Ins. Co., 198 So. 3d 871, 873 (Fla. 2d DCA 2016) (holding that the disclosure 

of personal financial information constitutes irreparable harm); Cordis Corp. v. O'Shea, 

988 So. 2d 1163, 1166 (Fla. 4th DCA 2008) ("Once the confidential information is 

released . . . the harm, or invasion of the privilege, privacy[,] or trade secret interest, has 

occurred. It cannot be remedied by final appeal."). Here, Mr. Gomillion asserts a 

privacy interest under article I, section 23 of the Florida Constitution in the toxicology 

records the State seeks to subpoena. If the trial court's order allowing the disclosure of 

those records in fact departs from the essential requirements of law, Mr. Gomillion will 

have sustained an immediate injury (the impairment of his legally-recognized privacy 

interest) that a postjudgment appeal cannot remedy (an appeal cannot fix the violation 

of his privacy rights occasioned by the disclosure). Our certiorari jurisdiction is thus 

properly invoked in this case. See, e.g., Faber v. State, 157 So. 3d 429, 431 (Fla. 2d 
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DCA 2015) (granting a certiorari petition where the trial court allowed disclosure of 

medical records in response to the State's request); Tyson v. State, 114 So. 3d 443, 

444-45 (Fla. 5th DCA 2013) ("Certiorari is the appropriate vehicle to review an 

interlocutory order requiring the production of confidential medical records.").

Turning to whether the trial court's order departs from the essential 

requirements of law, we begin, as Mr. Gomillion does, with the recognition that in 

Florida, medical records are protected as private by our state constitution. Article I, 

section 23's guarantee that "[e]very natural person has the right to be let alone and free 

from governmental intrusion into the person's private life" has been held to protect an 

individual privacy interest in medical records.3 See State v. Rivers, 787 So. 2d 952, 953 

(Fla. 2d DCA 2001) (citing Hunter v. State, 639 So. 2d 72, 74 (Fla. 5th DCA 1994)). To 

overcome a person's right to keep his or her medical records private, the State is 

obligated to prove that it has a compelling interest in having the records disclosed. Id. 

at 953; see also Guardado v. State, 61 So. 3d 1210, 1213 (Fla. 4th DCA 2011). One 

way in which the State can carry that burden—and the only way it attempted to do so in 

this case—is to prove that the medical records are relevant to an ongoing criminal 

investigation. See Faber, 157 So. 3d at 431; Rivers, 787 So. 2d at 953. Our court and 

others have recognized that a trial court departs from the essential requirements of law 

when it allows disclosure of medical records absent such proof (or proof of some other 

compelling interest). See Faber, 157 So. 3d at 431 (holding that the trial court departed 

from the essential requirements of law where it authorized a subpoena for medical 

3There are also statutes that regulate the disclosure of confidential 

information in medical records, and those are also discussed in the petition. See 

§§ 395.3025, 456.057, Fla. Stat. (2016). Because it is the constitutional protection that 

drives the result in this case, however, we do not address them further. 
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records where "the State presented an insufficient nexus to establish the relevance" of 

the records); Tyson, 114 So. 3d at 445 (granting certiorari relief where "the State did not 

present evidence to establish relevancy"). 

As our court framed it in Rivers, the dispositive question is whether the 

State has presented a "reasonable founded suspicion" that the records it seeks are 

relevant to an ongoing investigation. 787 So. 2d at 953; see also State v. Rutherford, 

707 So. 2d 1129, 1131 (Fla. 4th DCA 1997) ("A compelling state interest in this type of 

case is established by showing that the police have a reasonable founded suspicion 

that protected materials contain information relevant to an ongoing criminal 

investigation."), disapproved on other grounds, State v. Johnson, 814 So. 2d 390, 394 

(Fla. 2002). Although the cases speak of an "ongoing criminal investigation"—which 

might imply that we are talking about preprosecution investigative work—the State's 

burden is satisfied if it shows a reasonable, founded suspicion that the materials are 

relevant to ongoing criminal litigation as well. See, e.g., Rivers, 787 So. 2d at 953-54 

(holding that the State's burden was satisfied when the materials were "directly related" 

to the offense with which the defendant was charged). Applying that test, the cases 

have required that the State show a "nexus" between the medical records the State 

seeks and some material issue in the case by (1) identifying some theory that 

reasonably makes the records relevant and (2) producing some evidence that makes it 

reasonable to expect that the records will produce evidence that supports the theory. 

See Faber, 157 So. 3d at 431 (requiring that the State demonstrate a "nexus" between 

the records and some relevant issue); McAlevy v. State, 947 So. 2d 525, 529 (Fla. 4th 

DCA 2006) ("[T]he [S]tate must present evidence and argument to show the nexus 

between the medical records sought and a pending criminal investigation."); Cerroni v. 
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State, 823 So. 2d 150, 152 (Fla. 5th DCA 2002) ("[T]he [S]tate has the obligation and 

burden to demonstrate relevancy, via evidence, before the subpoena may issue." (citing 

Hunter, 639 So. 2d at 74)). 

In the trial court, the State did not argue or prove that there was some 

issue in an ongoing investigation into the crash that led to the offenses with which Mr. 

Gomillion was charged to which the toxicology records were material. Nor did it argue 

or prove that Mr. Gomillion's toxicology records were relevant to any element of any 

offense with which Mr. Gomillion was charged or to any defense Mr. Gomillion might 

present to those charges.4 The absence of any such assertion distinguishes this case 

4That aspect of the case is a bit puzzling. To prove the charged offense of 

carelessly or negligently operating a motor vehicle while causing death or serious bodily 

injury under section 322.34(6)(b), the State is required to prove that Mr. Gomillion 

operated the vehicle in a careless or negligent manner. See Fla. Std. Jury Instr. (Crim.) 

28.12 (stating the element of carelessness or negligence and defining those terms). Mr. 

Gomillion's intoxication (if any) seems potentially probative of whether he drove 

negligently or carelessly, which might make his toxicology records relevant. Resolving 

that issue, however, would require us to resolve questions concerning whether, upon 

what showing, and to what extent a defendant's toxicology records become relevant 

when the State has charged an offense that has carelessness or negligence as an 

element (e.g., Is the mere fact that the State has charged such an offense enough and, 

if not, what showing is required?). Because the State did not factually develop these 

issues in the trial court and did not legally develop these issues here, we decline to do 

so. See Powell v. State, 120 So. 3d 577, 591 (Fla. 1st DCA 2013) ("The tipsy 

coachman doctrine allows appellate courts to consider grounds for affirmance if the 

record supports doing so; it does not compel them to overlook deficient records and 

blaze new trails that even the tipsiest of coachmen could not have traversed."); E.K. v. 

Dep't of Children & Fam. Servs., 948 So. 2d 54, 57 (Fla. 3d DCA 2007) (explaining that 

the "[t]ipsy [c]oachman" doctrine "does not rescue parties from their own inattention to 

important legal detail"). 

The State does argue—for the first time in this court—that the toxicology 

records are relevant to establish a motive for Mr. Gomillion to leave the scene (i.e., that 

he was intoxicated) for purposes of proving the charged offense of leaving the scene of 

an accident. But the State has not shown that motive is at all relevant in this case. 

Stripped to essentials, the relevant question on the count for leaving the scene is 

whether Mr. Gomillion knowingly, intentionally, and purposely left the scene of an 

accident. See Fla. Std. Jury Instr. (Crim.) 28.4. On the facts in the appendices filed by 

the parties, there is no dispute that someone did that; the only question is whether that 
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from our decision in Rivers and the Fourth District's decision in McAlevy, upon which the 

State primarily relies. In each of those cases, the State sought to subpoena toxicology 

records in the course of a prosecution for driving under the influence. Rivers, 787 So. 

2d at 953; McAlvey, 947 So. 2d at 528. To the extent the toxicology records in those 

cases revealed drugs or alcohol in the defendant's blood, the records would have been 

directly relevant to a substantive issue in the case. In contrast here, the State advanced 

no theory that made the medical records relevant to any substantive issue in the case. 

See, e.g., Barahona v. State, 172 So. 3d 470, 473 (Fla. 3d DCA 2015) (holding that 

defendant in a murder trial was not entitled to subpoena her codefendant's medical 

records where she "has not alleged, much less demonstrated, how any of Mr. 

Barahona's hospital records would relate to the separate case against her"); Tyson, 114 

So. 3d at 445 (quashing medical record subpoena where the State failed to offer 

evidence that the defendant's medical records "relate[d] to any element of the charged 

offense").

That leaves us with the reason the trial court gave for overruling Mr. 

Gomillion's objection and allowing the subpoena—namely, that the toxicology records 

might help impeach Mr. Gomillion at trial. The parties do not dispute that relevance for 

an impeachment purpose may be a sufficient basis to access medical records protected 

by article I, section 23. But see Graham v. Dacheikh, 991 So. 2d 932, 935 (Fla. 2d DCA 

2008) (quashing order authorizing discovery of nonparty medical records in a personal 

injury case based on lack of notice and absence of privacy protections and considering 

someone was Mr. Gomillion. Furthermore, as explained in the text, even if the State 

had identified a theory of relevance, it presented no evidence making it reasonable to 

expect that the toxicology records would contain information supporting the theory. 
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that the records were sought for impeachment purposes rather than substantive 

evidence). Accordingly, we assume without deciding that a reasonable, founded 

suspicion that medical records will yield evidence with which the State may impeach a 

criminal defendant—in the uncertain event he or she testifies—is sufficient to override 

the defendant's constitutional right of privacy in those medical records. The rules 

applicable in cases where medical records are alleged to be relevant to a substantive 

issue, as discussed above, dictate that the State must at a minimum establish a nexus 

between the records and the ongoing criminal litigation by identifying a reasonable 

theory of impeachment and presenting evidence that makes it reasonable to expect that 

the records will produce evidence that supports the theory.

Here, the State has identified a reasonable theory of impeachment—that 

the records, if they establish that Mr. Gomillion was under the influence of drugs or 

alcohol, might yield evidence that goes to his ability to observe, remember, or recount 

the events of the evening in question. See § 90.608(4), Fla. Stat. (2016); Edwards v. 

State, 548 So. 2d 656, 658 (Fla. 1989) (holding that evidence of drug use is admissible 

if "it can be shown that the witness had been using drugs at or about the time of the 

incident which is the subject of the witness's testimony"). But the State presented no 

evidence making it reasonable to believe that the toxicology records will turn up 

evidence that Mr. Gomillion was under the influence of drugs or alcohol. The fact that 

he is alleged to have left the scene of an accident, standing alone, is insufficient to 

make that showing, as there are myriad reasons unrelated to drug or alcohol use 

someone might do so (e.g., driving with a canceled, suspended, or revoked license; 

concern about liability; or involvement in other questionable activity). Cf. Guardado, 61 

So. 3d at 1214 (rejecting the argument that a crash involving death always makes 
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toxicology records relevant). The arrest affidavit adds nothing because, unlike the 

arrest affidavits in cases like Hunter and McAlvey, the arrest affidavit here contains no 

indication that the arresting deputies made observations of Mr. Gomillion's smell, 

appearance, or demeanor (or found anything else) consistent with or that led them to 

suspect drug or alcohol use. And finally, the recorded call between Mr. Gomillion and 

Mr. Gray provides no reasonable basis to expect the medical records to turn up 

information about drug or alcohol use: It was Mr. Gray, not Mr. Gomillion, who brought 

up the subject of drugs or alcohol, and only to ask if Mr. Gomillion was facing a DUI 

charge. Mr. Gomillion never said anything from which one might reasonably infer that 

he was under the influence of drugs or alcohol at the time of the accident, and the State 

presented nothing to suggest that Mr. Gray was in a position to know that Mr. Gomillion 

was under the influence of drugs or alcohol at the time of the accident. Ultimately, no 

part of the State's evidence suggests a reasonable basis to expect that Mr. Gomillion 

was under the influence of drugs or alcohol when the crash occurred. With no such 

evidence, the State could not establish a nexus between the toxicology records and its 

case against Mr. Gomillion. 

Because the State failed to show that nexus, there was no compelling 

state interest upon which the trial court could rely to override Mr. Gomillion's 

constitutional right to privacy with respect to his toxicology records. The trial court's 

order departs from the essential requirements of law to the extent that it allows the State 

to subpoena those records. For that reason, we grant the petition and quash the order 

to that extent. We note that nothing about our disposition prevents the State from 

seeking to subpoena such medical records where it has shown or can in the future 

show the requisite nexus.
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Petition granted in part; order quashed in part. 

KELLY and LUCAS, JJ., Concur.