Olson v. Blasco, 96-0676
| Decision Date | 19 June 1996 |
| Docket Number | No. 96-0676,96-0676 |
| Parties | 21 Fla. L. Weekly D1423 David Mark OLSON, Petitioner, v. Jeryl BLASCO, individually, and as Personal Representative of the Estate of John Blasco, Jr., deceased, and Jeryl Blasco, on behalf of John Blasco and Michael Blasco, surviving minor children, and National Car Rental System, Inc., Respondents. |
| Court | Florida District Court of Appeals |
Richard A. Sherman of Law Offices of Richard A. Sherman, P.A., and John P. Murphy of Green, Murphy & Wilke, P.A., Fort Lauderdale, for petitioner.
Charles E. Rutherford and Andrew K. Fein of Rutherford, Minerley & Mulhall, P.A., Boca Raton, for Respondent-Jeryl Blasco.
Petitioner, the defendant in a pending wrongful death action below and a criminal prosecution stemming from the same facts, seeks certiorari review of an order overruling his objection to discovery of records relating to his psychological treatment both before and after the accident. We grant the petition and quash the trial court's order.
Petitioner has not made his mental condition a defense in the civil action he is defending. Accordingly, there is no waiver pursuant to section 90.503(4)(c), Florida Statutes (1993).
The trial court concluded that the listing by petitioner of his therapists' names in a discovery response in the criminal action waived the privilege. We disagree because there has been no showing that their being named will result in a defense based upon his condition.
Petitioner undeniably has a due process right under both the federal and Florida constitutions to defend himself against the criminal charges and to call witnesses on his behalf. U.S. Const. amend. V; Fla. Const. art. 1, § 9. Under Florida Rule of Criminal Procedure 3.220(d)(1), a defendant's right to call a particular witness at trial is conditioned upon his furnishing the prosecutor with the witness' name and address prior to trial. McDugle v. State, 591 So.2d 660, 661 (Fla. 3d DCA 1991). A criminal defendant is not required to present any defense to the charges, and his mere disclosure of potential witnesses or other evidence pursuant to rule 3.220 does not obligate him to put on a defense. However, his failure to file a written discovery response under that rule can prevent him from exercising his constitutional right to present a defense, if the state can demonstrate that it was prejudiced by the defendant's failure to comply with the discovery requirements of the rule. McDugle, 591 So.2d 660; Hernandez v. State, 572 So.2d 969 (Fla. 3d DCA 1990). Disclosure under these circumstances would place too high a cost on the petitioner's decision to preserve his ability to invoke his constitutional rights in the...
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