SCOTT A. ROBERTS

v.

STATE OF FLORIDA

WHITE, J.

Scott A. Roberts petitions this Court for a writ of prohibition to prevent the trial court from authorizing the State of Florida to issue a subpoena for Roberts’

medical records.¹ We treat Roberts’ petition as a petition for writ of certiorari, grant the petition and quash the trial court’s order. Background As part of a criminal investigation of Roberts, the State filed a motion seeking leave of court to subpoena medical records pursuant to sections 395.3025 and 401.30, Florida Statutes (the “Motion”). No criminal charge had been filed against Roberts at that time. The Motion alleged that Roberts was driving a vehicle involved in multiple accidents then was transported by ambulance to the hospital. The Motion also listed indicators of alcohol consumption that were smelled, seen and heard by a deputy sheriff who met with Roberts at the hospital.

The State asserted in the Motion that the medical records requested were relevant to a DUI case against Roberts and attached copies of documents allegedly prepared by deputy sheriffs related to that DUI case (the “Attachments”). The Motion was signed by the Assistant State Attorney but was unsworn. The Attachments were unsigned and unsworn.

At the hearing on the Motion, no witnesses testified and no exhibits were admitted into evidence. The State presented argument based on the Motion and the Attachments. In response, Roberts argued that the State failed to meet its burden because it did not present any evidence to establish the relevance or nexus of the medical records to its investigation.

The trial court entered an order granting the Motion. Roberts then filed a petition for writ of prohibition. Analysis Although Roberts seeks a writ of prohibition, the argument in the petition is essentially a request that we quash the trial court’s order granting the Motion.

However, a writ of certiorari, not a writ of prohibition, is a more appropriate mechanism to quash an order. Cf. Corbett v. State, 348 So. 3d 645, 648 (Fla. 5th DCA 2022) (writ of prohibition cannot undo or revoke an order, but an order may be quashed by a writ of certiorari). Our sister courts have reviewed orders granting the State’s requests for the subpoena of medical records by petitions for writ of certiorari. See, e.g., McKnight v. State, 335 So. 3d 190, 191-92 (Fla. 5th DCA 2022); Rodriguez v. State, 308 So. 3d 1018, 1020-21 (Fla. 4th DCA 2020); Leka v. State, 283 So. 3d 853, 856-59 (Fla. 2d DCA 2019).

We conclude that a petition for writ of certiorari is the proper vehicle to seek review of the order granting the Motion.

Therefore, we treat Roberts’ petition as a petition for writ of certiorari. See Fla. R. App. P. 9.040(c); see also Beasley v. Ag. for Pers. with Disab., 339 So. 3d 477, 478 (Fla. 1st DCA 2022) (treating petition for writ of prohibition as petition for writ of certiorari); Skelly v. Skelly, 277 So. 3d 1087, 1089 (Fla. 5th DCA 2019) (same); State v. Wong, 271 So. 3d 74, 75 (Fla. 3d DCA 2019) (same).

“It is well settled that to obtain a writ of certiorari, there must exist ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’” Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) (quoting Bd. of Regents v. Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002)). “Irreparable harm required by the second and third elements is jurisdictional and must be found before considering whether there has been a departure from the essential requirements of the law.” Skelly, 277 So. 3d at 1089. The order granting the Motion authorized the State to subpoena Roberts’ medical records. Those records are protected by sections 395.3025 and 401.30, Florida Statutes. See McKnight, 335 So. 3d at 191-92; Rodriguez, 308 So. 3d at 1020; Leka, 283 So. 3d at 857. Roberts has established irreparable harm because a violation of either statute causes an immediate injury that cannot be remedied on appeal. See McKnight, 335 So. 3d at 191-92; Leka, 283 So. 3d at 857-58.

We now turn to the issue of whether the trial court departed from the essential requirements of the law. To obtain a subpoena for medical records, the State must present argument and evidence showing a nexus between those records and the criminal investigation. See McKnight, 335 So. 3d at 192; Leka, 283 So. 3d at 859.

At the hearing on the Motion, the State presented no evidence.

We reject the State’s contention that making argument at the hearing that referred to the Motion and the Attachments satisfied its obligation to present evidence.

Therefore, Roberts has demonstrated a departure from the essential requirements of the law. See McKnight, 335 So. 3d at 192. Conclusion For all the foregoing reasons, we grant the petition for writ of certiorari and quash the trial court’s order granting the Motion. PETITION GRANTED; ORDER QUASHED. TRAVER and MIZE, JJ., concur. Robert N. Harrison, of Robert N. Harrison, P.A., Venice, for Petitioner. Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent.