DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

S.P., by and through her natural guardian R.P.,

Petitioner,

v.

ANTHONY VECCHIO and the STATE OF FLORIDA,

Respondents.

No. 4D14-14

[October 1, 2014]

Petition for writ of certiorari to the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Charles E. Burton, Judge; L.T. Case 

No. 502011CF006513AMB.

Roberto Martinez and Latoya C. Brown of Colson Hicks Eidson, Coral 

Gables, for petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, 

Assistant Attorney General, West Palm Beach, for respondent State of 

Florida.

CIKLIN, J.

S.P., a non-party child victim in a criminal case against Anthony 

Vecchio, by and through her natural guardian, seeks certiorari review of a 

non-final order granting Vecchio’s motion to unseal S.P.’s medical records. 

We granted the petition on May 28, 2014, and now follow with this opinion.

Because compulsory disclosure of the records would violate both S.P.’s 

constitutional right to privacy and her psychotherapist-patient privilege, 

we grant S.P.’s petition and quash the trial court’s order requiring the child 

victim to unseal her medical records.

Background

Vecchio was charged with lewd or lascivious battery, lewd or lascivious 

molestation, and battery on a child. A security guard working the night 

shift at a Boca Raton condominium encountered S.P., fourteen years of 

age at the time, who claimed she had escaped from someone named Tony. 
2

The guard would later state in a deposition that he saw video footage of 

Vecchio kissing S.P. in one of the condominium’s elevators. S.P. was 

transported to a child protection team (CPT)1 for a sexual battery exam 

and a doctor with the CPT recovered semen from S.P.’s vaginal area which 

was found to have come from Vecchio. The genital examination also 

produced evidence of scant bleeding and blunt force trauma which was 

consistent with S.P.’s version of events. During the time of the exam and 

into the next morning, a Boca Raton Police Department detective

conducted an interview with Vecchio during which he admitted to 

performing sexual acts with S.P. When pressed about S.P.’s age, Vecchio

denied having knowledge of her age although he guessed it to be between 

eighteen and twenty years. Vecchio admitted to penetrating the victim 

with his finger. 

While the criminal case against Vecchio was pending, the state filed the 

declaration of Dr. Richard Jackson for the purpose of establishing S.P.’s 

unavailability for Vecchio’s then upcoming criminal trial. For the 

preceding ten months, Dr. Jackson had been treating S.P. at a Utah

residential treatment center for girls. S.P. had been making progress, but 

upon learning that the prosecution of Vecchio was still ongoing, suffered 

a severe relapse which encompassed active suicidal ideation. In his 

declaration Dr. Jackson stated:

As a result, I decided along with my colleagues at [the 

treatment center] that S.P. immediately had to be admitted inpatient at a neuropsychiatric hospital in the State of Utah for 

more intensive treatment.

Dr. Jackson also noted that S.P. was suffering from depressive disorder 

1 CPTs were created by the Legislature in 1984. Ch. 84-226, Laws of Fla.

The Children’s Medical Services Program in the Department of Health shall 

develop, maintain, and coordinate the services of one or more 

multidisciplinary child protection teams in each of the service districts of 

the Department of Children and Families. Such teams may be composed 

of appropriate representatives of school districts and appropriate health, 

mental health, social service, legal service, and law enforcement agencies. 

The Department of Health and the Department of Children and Families 

shall maintain an interagency agreement that establishes protocols for 

oversight and operations of child protection teams and sexual abuse 

treatment programs. 

§ 39.303, Fla. Stat. (2014).
3

NOS, anxiety disorder NOS, eating disorder NOS, as well as nightmares. 

As a result of Dr. Jackson’s declaration, the state removed S.P. from its 

witness list as to its prosecution of Vecchio, with an intent to rely on DNA 

evidence and Vecchio’s statement to police.

Vecchio moved to allow for issuance of subpoenas duces tecum for 

S.P.’s records, including her medical, psychiatric, pharmacy, hospital, and 

school records. In support of his motion, Vecchio argued that he had come 

into possession of information which suggested that, prior to the incident 

alleged, S.P. had been on medication, suffered from depression and an 

eating disorder, and had been hospitalized twice. The state objected on 

the grounds of irrelevancy, although it conceded that S.P. was using

Prozac the night of the incident, which might, the state agreed, have some 

relevance with respect to sentence mitigation. The trial court granted the 

motion to the extent that it would conduct an in-camera review. During 

the in-camera review, the trial court found one relevant item2 and made it 

available to the defense after which the records were re-sealed. Shortly 

before Vecchio’s trial, the defense filed a motion to have S.P.’s medical 

records unsealed, which the trial court denied without prejudice.

On December 14, 2012, Vecchio entered an open plea of guilty to lewd 

or lascivious battery, lewd or lascivious molestation and battery on a child.

Prior to the imposition of sentence, a sentencing memorandum was

prepared and offered by the state. The memorandum noted the emotional 

distress the victim continued to suffer as a result of the incident. In 

addition to its memorandum, the state introduced testimony from S.P.’s 

sister and father who reported, among other things, that S.P. had 

intentionally run into traffic while at the Utah facility; that she suffered

from nightmares and eating disorders; and that she would call her father 

at all hours of the day and night telling him that she was contemplating 

self-inflicted injury. The trial court sentenced Vecchio to 96 months in 

prison followed by 84 months of supervision. The sentence represented a 

downward departure from the 185 months that Vecchio scored under the 

sentencing guidelines. 

After sentencing, Vecchio appealed from his judgment and sentence. 

Before filing his initial brief, however, Vecchio moved for an extension of 

time and asked this court to relinquish jurisdiction so he could request 

that the trial court unseal the victim’s medical records for purposes of 

raising a discovery violation issue on appeal. We granted his unopposed 

motion to relinquish jurisdiction to enable Vecchio to file a motion to 

2 None of the pleadings or appendix items submitted by the parties contain or 

otherwise describe the one item found to be relevant by the trial court.
4

unseal S.P.’s medical records. 

In accordance with our relinquishment order, Vecchio filed the instant 

motion to unseal S.P.’s medical records. While arguing his motion before 

the trial court, Vecchio asserted that if he had been given access to 

“complete information” before he voluntarily entered his plea, he could 

have made a more informed choice regarding resolution of the criminal 

prosecution against him including a specific plea offer from the state.

3

Vecchio argued to the trial court that if he had known all of S.P.’s mental 

health information cited by the state, “his decision would have been 

different,” although Vecchio offered no specificity in that regard. Vecchio

also asserted that because he was denied access to S.P.’s complete medical 

record files, he was unable to properly prepare for sentencing. Vecchio 

suggested to the trial court that he sought review of S.P.’s records not 

necessarily to observe what was contained therein but rather to determine 

what was not included in the private records and yet offered by the state 

through the testimony of S.P.’s sister and father. (As Vecchio put in his 

motion to unseal, “to see what has been left out on purpose.”). Should 

such exclusions be apparent, Vecchio argued, then a discovery violation 

would have occurred pursuant to Brady.

4

Through her natural guardian, S.P. filed her “opposition to motion to 

unseal medical records,” arguing that the records are privileged and 

private. She urged the trial court to deny Vecchio’s motion, particularly 

because the court had already conducted a thorough in-camera inspection 

of S.P.’s private and highly sensitive records and concluded all but one 

item was irrelevant. 

In a written order, the trial court granted Vecchio’s motion to unseal 

S.P.’s medical records and the instant petition for writ of certiorari 

followed. 

Analysis

Certiorari review is available to non-parties under certain 

circumstances. Borck v. Borck, 906 So. 2d 1209, 1211 (Fla. 4th DCA 2005) 

(quashing order compelling production of financial information of nonparties). Additionally, certiorari is a proper vehicle to review orders 

compelling the production of records that are protected by the 

psychotherapist-patient privilege. Smith v. Smith, 64 So. 3d 169, 170 (Fla. 

3 The terms of any proposed plea agreement offered by the state are not included 

in the record provided to us.

4 Brady v. Maryland, 373 U.S. 83 (1963).
5

4th DCA 2011) (citations omitted).

S.P. argues that her medical records are protected from disclosure by 

both constitutional and statutory rights to privacy, as well as the 

psychotherapist-patient privilege, and as such, the trial court departed 

from the essential requirements of the law by ordering their disclosure 

without compelling reason. She contends that the disclosure will result in 

irreparable harm to her, not remediable by appeal. Vecchio argues that 

disclosure of the medical records is compelled by the potential existence 

of a Brady violation. 

We agree with S.P. Her records are protected, and although confidential 

clinical records may be disclosed where the court determines there is good 

cause, see section 394.4615(2)(c), Florida Statutes (2013), there is no such 

good cause here.

Florida law is clear that a person’s medical records enjoy a confidential 

status. First, the right to privacy contained in Article I, section 23 of the 

Florida Constitution has been extended to preclude dissemination of one’s 

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

Second, confidential medical records are protected from disclosure as 

provided in Florida statutory law. See § 456.057(7)(a), Fla. Stat. (2013)

(providing that, with few exceptions, medical records may not be furnished 

to any person other than the patient or the patient’s legal representative 

or other treating health care providers, except upon written authorization 

of the patient). Third, section 90.503(2) provides that under the 

psychotherapist-patient privilege, a patient has a privilege to refuse to 

disclose confidential information or records made for the purpose of 

diagnosis or treatment of mental conditions, including any diagnoses 

made by the psychotherapist. There are only three enumerated exceptions 

to the psychotherapist-patient privilege; it does not apply (1) during 

involuntary commitment proceedings, (2) when there is a court-ordered 

mental examination, or (3) when the patient, or a party after the patient’s 

death, raises and relies on the issue of the patient’s mental condition in 

litigation as part of any claim or defense. § 90.503(4), Fla. Stat. (2013). 

None of those exceptions apply in this case.

This court has consistently and repeatedly held that, absent evidence 

of an applicable statutory exception or waiver, a trial court departs from 

the essential requirements of law when it enters an order compelling 

disclosure of communications or records in violation of the 

psychotherapist-patient privilege. See Smith, 64 So. 3d at 170-71 (citing 

Urbanek v. Urbanek, 46 So. 3d 1235 (Fla. 4th DCA 2010); Cruz-Govin v. 

Torres, 29 So. 3d 393, 395 (Fla. 3d DCA 2010)); Palm Beach Cnty. Sch. Bd. 
6

v. Morrison, 621 So. 2d 464, 468 (Fla. 4th DCA 1993). 

The fact that S.P.’s ongoing psychological issues were mentioned during 

Vecchio’s sentencing proceedings is not good cause for disclosure of the 

records. Indeed, it is reasonable that the offenses perpetrated upon S.P. 

by Vecchio would result in psychological problems for the victim. See 

Floyd v. State, 18 So. 3d 432, 447 (Fla. 2009). In Floyd, the defendant had 

been convicted of fatally shooting his mother-in-law. At trial, two of Floyd’s 

step-children testified that they witnessed Floyd shooting the victim. One 

of the issues raised by Floyd on appeal centered around the trial court’s 

denial of his requests to subpoena the counseling records of the children 

witnesses. Id. at 446. The Court noted that despite the psychotherapistpatient privilege, section 394.4615(2)(c) permits court-ordered disclosure 

for good cause. Nonetheless, the Court found good cause not to exist. 

“Rather, it is completely reasonable, if not expected, for children who 

witnessed the murder of their grandmother to have psychological issues 

arising from the event.” Id. at 447. 

Based on our review of the proceedings below, the disclosure of S.P.’s

medical records, like in Floyd, would only confirm the inevitable trauma 

caused by the underlying event. S.P.’s mental health issues have been 

thoroughly outlined in Dr. Jackson’s declaration. Therefore, the 

statements made by S.P.’s family members during sentencing merely 

echoed the obvious traumatic effect that Vecchio’s lewd molestation could 

be expected to have on this minor. 

Finally, Vecchio argues that the reason he seeks to invade S.P.’s privacy 

is to prove a Brady violation, which, he asserts, may have impacted his 

decision to go to trial or enter a plea. In order to show there has been such 

a violation however, “the defendant has the burden to show (1) that 

favorable evidence, either exculpatory or impeaching, (2) was willfully or 

inadvertently suppressed by the State, and (3) because the evidence was 

material, the defendant was prejudiced.” Hurst v. State, 18 So. 3d 975, 

988 (Fla. 2009) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). 

Vecchio fails to meet his burden. And in the event that we are 

understating the merits of Vecchio’s argument, Judge Burton’s thorough 

in-camera inspection of the records in question has acted as a solid safety 

net. His independent in-camera inspection assures us that no exculpatory 

or relevant evidence was impermissibly withheld. Additionally, S.P. is not 

an agent of the state, and assuming for the sake of argument that she or 

her doctors did withhold relevant records, the state—under the facts of 

this case—would not be liable for a willful or inadvertent suppression of 
7

discovery.5 Finally, Vecchio was not prejudiced. Our own review of the 

record below suggests that nothing contained within the private and 

confidential medical files of the victim would be of any significance to 

Vecchio’s defense, particularly because his conviction was based on 

independent evidence and the requisite factual basis underlying his guilty 

plea. 

The crimes to which Vecchio pled guilty are strict liability crimes and 

the state is not required to prove a lack of victim consent, the victim’s 

motive, or mistake as to the victim’s age. The state was required to prove 

the victim’s age and that Vecchio engaged in sexual acts with her. The 

state’s efforts proved successful with overwhelming evidence of Vecchio’s 

guilt. Based on the record before us, we specifically find that S.P.’s medical

records would be unavailing to Vecchio—disclosure will achieve nothing. 

While certain specifics of the medical records may remain unknown 

out of respect for the victim’s psychotherapist-patient privilege, it has been 

well documented that the victim/patient, S.P., was and has been suffering 

from certain mental health issues, as Dr. Jackson meticulously detailed. 

If we were to permit the trial court’s order to stand, S.P.’s privacy rights 

would be irreversibly violated. 

We grant the victim’s petition and quash the trial court’s order to unseal 

S.P.’s medical records.

Petition granted.

WARNER and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

5 “It is well-settled that the state is charged with constructive knowledge and 

possession of evidence withheld by state agents, including law enforcement 

officers.” Tarrant v. State, 668 So. 2d 223, 225 (Fla. 4th DCA 1996) (citations

omitted). See also Lewis v. State, 22 So. 3d 753, 757-58 (Fla. 4th DCA 2009) 

(holding that where the defendant was not aware of a statement a state witness 

made during trial, the court’s Richardson hearing should have included an 

inquiry into whether “the state or the police ever possessed [the witness’] 

statement,” as the state is charged with constructive knowledge of evidence in 

the possession of state agents).