State v. Barreiro, 83-504

• Decision Date: 05 May 1983
• Docket Number: No. 83-504,83-504
• Citation: 432 So.2d 138
• Parties: The STATE of Florida, Petitioner, v. Hipolito BARREIRO, Respondent.
• Court: Florida District Court of Appeals

Page 138

432 So.2d 138

The STATE of Florida, Petitioner, v. Hipolito BARREIRO, Respondent.

No. 83-504.

District Court of Appeal of Florida,

Third District.

May 5, 1983.

Rehearing Denied June 13, 1983.

Jim Smith, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for petitioner.

Ferrell & Ferrell and Milton M. Ferrell, Jr., Miami, for respondent.

Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

On January 26, 1983, two days after the State had filed an information charging Barreiro with the crimes of manslaughter, unlawful termination of pregnancy, practicing medicine without a license, and tampering with a witness, the clerk of the Circuit Court, at the State's request, issued a subpoena duces tecum to be served on the custodian of records of Woman's Care Center, Inc., a Florida corporation. The subpoena called for the corporation to produce in the office of the State Attorney all records of medical examinations and abortions occurring between certain specified dates in 1982. Barreiro, alleging that he is the president and director of the subpoenaed corporation and that the shareholders of such corporation are he and his immediate family, moved to quash the subpoena on the ground that its issuance after the filing of an information is in disregard of the discovery provisions of the Florida Rules of Criminal Procedure and thus contrary to this court's decision in Able Builders Sanitation Co. v. State, 368 So.2d 1340 (Fla. 3d DCA), dismissed, 373 So.2d 461 (Fla.1979). ¹ , ² The trial court, "in the spirit of Able," granted the defendant's motion. The State petitions for a writ of certiorari to review that order. We grant the writ and vacate the order.

In our view, the trial court's order erroneously disembodies Able. As that case makes clear, the State Attorney, "either before or after an indictment or information has been filed," is free to subpoena witnesses to appear before him to testify as to any violation of criminal law within his jurisdiction. ³ The only restriction which Able imposes on this otherwise unfettered power ⁴ is that it not be exercised so as to defeat the discovery provisions of the Florida Rules of Criminal Procedure.

There is only a single situation where the State's power to subpoena the witness is vitiated altogether. ⁵ That is where after an indictment or information has been filed the power is attempted to be used "to discover documents and other physical evidence from the defendant which the State is not otherwise entitled to under the reciprocal discovery provisions of the Florida Rule of Criminal Procedure." Able Builders Sanitation Co. v. State, 368 So.2d at 1342 (emphasis supplied). Thus, where a defendant does not file a demand for discovery under Florida Rule of Criminal Procedure 3.220(a)(1)(ii), (x) or (xi), he is not obliged to produce for the State's inspection the corresponding items in his possession or control. See Fla.R.Crim.P. 3.220(b)(4). In such an instance the State is precluded from using its subpoena power to obtain these items.

It is by now obvious that neither the body nor spirit of Able can be relied on to justify quashing the State's subpoena to a nondefendant to produce its records. Able precludes the State from circumventing the discovery rules by subpoenaing records in the defendant's possession and control which the defendant is under no obligation to produce unless he invokes his own right to discover like items. But the records of Woman's Care Center, Inc. are simply not records in the possession and control of the defendant. Cf. Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974) (a witness must produce corporate documents in his custody even though the documents incriminate him personally); Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911) (same); Hair Industry, Ltd. v. United States, 340 F.2d 510 (2d Cir.), cert. denied, 381 U.S. 950, 85 S.Ct. 1804, 14 L.Ed.2d 724 (1965) (same); Fineberg v. United States, 393 F.2d 417 (9th Cir.1968) (same, close corporation); Gerardo v. State, 355 So.2d 1221 (Fla.3d DCA), cert. denied, 364 So.2d 885 (Fla.1978) (defendant's act of producing books and records pursuant to subpoena duces tecum served on him as custodian of corporation's records does not serve to immunize him from later prosecution); State v. Deems, 334 So.2d 829 (Fla. 3d DCA 1976) (same). The records sought are instead in the possession and control of the corporate custodian, who, even if the defendant, is unprotected by any discovery rule. Although Barreiro claims that because of his ownership and control position in the corporation, a subpoena on the corporation is in effect a subpoena on him, it is well settled that when a man chooses to avail himself of the privilege of doing business as a corporation, even where he is its sole shareholder, he forfeits his right to claim that he is the alter ego of the corporation. See Hair Industry, Ltd. v. United States, 340 F.2d 510; Lagow v. United States, 159 F.2d 245 (2d Cir.1946), cert. denied, 331 U.S. 858, 67 S.Ct. 1750, 91 L.Ed. 1865 (1947). See also United States v. Bush, 582 F.2d 1016 (5th Cir.1978) (corporate officer and shareholder lacks standing to challenge allegedly illegal search and seizure of property belonging to the corporation); United States v. Britt, 508 F.2d 1052 (5th Cir.) cert. denied, 423 U.S. 825, 96 S.Ct. 40, 46 L.Ed.2d 42 (1975) (same); Dean v. State, 430 So.2d 491 (Fla. 3d DCA 1983).

Certiorari granted, and order quashing subpoena duces tecum vacated.

1 Barreiro has standing to move to quash a subpoena duces tecum served on a third-party corporation based on his status as a defendant complaining of a violation of the criminal procedure rules. Were this not his complaint, he would be without standing in the absence of a showing that the subpoena was directed at him personally. See Dean v. State, 430 So.2d 491 (Fla. 3d DCA 1983).

2 Barreiro raised several other grounds in his motion to quash, which were either ruled on adversely to him or not considered by the trial court. It is clear that were this an appeal by the State, we would have no authority to review rulings adverse to the defendant by way of cross-appeal, State v. DeConingh, 396 So.2d 858 (Fla.3d DCA 1981); State v. Clark, 384 So.2d 687 (Fla. 4th DCA), rev. denied, 392 So.2d 1372 (Fla.1980), or, more subtly, reach these rulings by holding that the trial court was right for the wrong reasons, State v. Roberts, 415 So.2d 796 (Fla. 3d DCA 1982); State v. Pratt, 386 So.2d 1249 (Fla. 4th DCA 1980). The fact that the defendant has a right to have rulings unfavorable to him reviewed on direct appeal at the conclusion of the case not only prevents review of such rulings on the State's interlocutory appeal, see State v. Clark, 384 So.2d 687, but also, because the defendant's right to direct appeal provides an adequate remedy at law, prevents review on the State's petition for writ of certiorari.

3 Except as is outlined in Able, there is no impediment to the State Attorney subpoenaing witnesses to prepare a pending case. While the State indicated below that one of its...