author: PER CURIAM. POLSTON, J.,

text:
    Anthony MUNGIN, Appellant, v. STATE of Florida, Appellee.
    No. SC09-2018.
    Supreme Court of Florida.
    Oct. 27, 2011.

      Todd G. Scher, Miami Beach, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Anthony Mungin was convicted of the 1990 murder of a convenience store clerk, Betty Jean Woods, and sentenced to death. See Mungin v. State (Mungin I), 689 So.2d 1026 (Fla.1995). Mungin appeals the postconviction court’s order summarily denying his successive motion for postcon-viction relief, filed pursuant to Florida Rule of Criminal Procedure 3.851, which challenged his conviction on the basis that a newly discovered witness significantly impeaches the testimony of Ronald Kirkland, the only witness who identified Mun-gin as leaving the crime scene immediately after the murder. The new witness, George Brown, asserts he was the first person on the scene after the murder and that no other person was present in the store. He states that he told this to police the night of the murder and that the police report is false. In the current proceeding, Mungin alleges that he was denied adequate adversarial testing because the newly discovered evidence from Brown impeaches Kirkland and shows that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). For the reasons discussed below, we reverse and remand the Giglio and Brady claims to the postconviction court for an evidentiary hearing, but deny the newly discovered evidence claim.

The pertinent facts of this case are set forth in this Court’s opinion on direct appeal as follows:

Betty Jean Woods, a convenience store clerk in Jacksonville, was shot once in the head on September 16, 1990, and died four days later. There were no eyewitnesses to the shooting, but shortly after Woods was shot a customer [Kirkland] entering the store passed a man leaving the store hurriedly with a paper bag. The customer, who found the injured clerk, later identified the man as Mungin. After the shooting, a store supervisor found a $59.05 discrepancy in cash at the store.
Mungin was arrested on September 18, 1990, in Kingsland, Georgia. Police found a .25-caliber semiautomatic pistol, bullets, and Mungin’s Georgia identification when they searched his house. An analysis showed that the bullet recovered from Woods had been fired from the pistol found at Mungin’s house.
Jurors also heard Williams[] rule evidence of two other crimes. They were instructed to consider this evidence only for the limited purpose of proving Mun-gin’s identity.
First, William Rudd testified that Mungin came to the convenience store where he worked on the morning of September 14, 1990, and asked for cigarettes. When Rudd turned to get the cigarettes, Mungin shot him in the back. He also took money from a cash box and a cash register. Authorities determined that an expended shell recovered from the store came from the gun seized in Kingsland.
Second, Thomas Barlow testified that he saw Meihua Wang Tsai screaming in a Tallahassee shopping center on the afternoon of September 14, 1990. Tsai had been shot while working at a store in the shopping center. A bullet that went through Tsai’s hand and hit her in the head had been fired from the gun recovered in Kingsland.

Mungin I, 689 So.2d at 1028 (footnote omitted).

In his first motion for postconviction relief, Mungin raised several claims regarding Kirkland, specifically that trial counsel was ineffective for failing to cross-examine Kirkland regarding Kirkland’s criminal cases; trial counsel was ineffective for failing to effectively examine Kirkland regarding his identification of Mungin and for failing to elicit testimony from Detective Christie Conn that would have destroyed Kirkland’s credibility; and newly discovered evidence cast further doubt on Kirkland’s veracity. On appeal from the denial of postconviction relief, Mungin raised as an issue that the circuit court erred in denying his claims of ineffective assistance of trial counsel during the guilt phase after an evidentiary hearing, including his claim that counsel was ineffective in failing to adequately impeach Kirkland’s testimony. Mungin v. State (Mungin II), 932 So.2d 986, 998 (Fla.2006). This Court affirmed the denial of postconviction relief and denied Mungin’s petition for a writ of habeas corpus. Id. at 1004. In denying relief, this Court engaged in a significant discussion of the claims involving whether counsel was ineffective in failing to properly impeach Kirkland based on the failure to discover and use Kirkland’s probationary status as impeachment and the failure to call Detective Conn regarding statements that Kirkland made that called Kirkland’s identification of Mungin into question. See id. at 998-99. This Court denied relief, holding that even if counsel was deficient, Mungin did not establish prejudice because counsel had attacked Kirkland’s identification of Mungin on cross-examination of Kirkland and during his cross-examination of other witnesses who asserted that, days before the crime, Mungin had short hair. During closing, counsel stressed these inconsistencies. Id. at 999.

In the current proceeding, Mungin filed a successive motion for postconviction relief, asserting that the newly discovered evidence from Brown impeaches Kirkland and shows that the State violated Brady and Giglio. In support of this claim, Mun-gin presented the following affidavit, which potentially calls Kirkland’s testimony into question:

AFFIDAVIT OF GEORGE BROWN

1. My name is George Brown.... I hereby state the following and will attest to same in any official proceeding.
2. On Sunday, September 16, 1990, at approximately 1355 hours, at the Little Champ Store on the corner of Chaffee Road and Crystal Springs Road, I was an eyewitness to the following events. I remember these event [sic] because I go past this location everyday since that date sixteen years ago.
3. I went into the store that day because it was hot outside. The lady was usually at the counter and was always there — she always made you feel that you were going to steal something — and she was always there. I went into the store and got a drink and went to the counter and she was not there. So, I waited there for a few minutes and then I thought something was wrong. I went to the bathroom and yelled for her and nothing happened. I went back up front and still she didn’t come. At the end of the counter there was a door open, so I hollered in there and nothing happened and she didn’t come. So, I looked down and there she was. I called 911.
4. There was no one in the store during this whole time. I was in there all alone. There was no one in the parking lot. There was no one at the gas pumps. There was no one out there. There was someone who came out of the store, brushed up against me when I was coming in but I could not tell who it was, whether the person was a male or female, white or black. I could never give a description of the person who was coming out of the store.
5. After I called 911, someone (a male) came into the store and asked what was happening. I was on the phone with 911 and told him that she was having a seizure and told him to roll her over on her side and then we heard this gurgling sound and the lady told us to roll her back on her back and we did.
6. The police officer came in at that time and he went over there and looked at her and decided to call the Life Flight. There was a cash drawer open on the register and the police officer told me that it was a Lottery drawer and it was always open. There was a glass of water next to the lady and a pill stuck to her lip — that is why I thought she was having a seizure and fell down.
7. I never noticed that there was any type of struggle in the store.
8. The police officer took over the situation and he asked me who found the lady and I told him that I had. He was really busy getting the Life Flight together. The guy that came in took over and pretended that he had been there the whole time. The man was not there when I got there and he did not find the lady. I told the police officer that I could not describe or ever identify the person that brushed past me, I just did not pay attention. The other guy was so busy talking and acting like he was there. I told the police officer if they didn’t need me any more, I was leaving.
9. There has never been any law enforcement officer, state attorney, investigator, defense lawyer, or anyone else come to talk with me since that day. I had no idea that anyone was identified or arrested or convicted for this crime.
10. I have reviewed a police report authored by K.D. Gilbreath, # 5182, dated November 5, 1990, which contained statements purportedly made by me at the only time I was ever spoken to by anyone about this case. The version of events as stated in the report is false.
10. [sic] On page 7 of the 14-page report in the last paragraph, Mr. Kirkland did not go into the store first. There was no one in the store when I came in. Mr. Kirkland came into the store after I called 911. Mr. Kirkland did not find the victim — it was me. Mr. Kirkland says in the report that he saw a black guy coming out of the store. This is not true because when I went into the store, someone was coming out and I could not identify anyone and no one was in the store when I was there.
11. On page 8 of the report, in the first paragraph, I remember the detective talking to me, but like I have said, Mr. Kirkland stepped up and tried to take over. I told the detective that I checked all the bathrooms to see where she was, and I checked everywhere because she was always in the front. I went over to where the counter was and there was a door open in the back — a little storage room. I turned around and saw her there and heard gurgling noises and that is when I called 911.
12. I looked over and saw the drawer open but I did not touch anything. The officer is incorrect to report that I checked the drawer of the cash register and then shut the drawer. That never happened.
13. I did not know the victim had been shot because I thought she had had a seizure because of the pill stuck to her lip and the water that was spilled next to her.
14. I told the officer that I was the only one in the store and Mr. Kirkland did not come into the store until after I called 911. There is no way he saw anyone in the store because the person who brushed by me I could not identify, so there is no way that Mr. Kirkland could identify anyone, he was not in the store. I could not tell you what the person looked like and I was standing in the store a long time trying to find the lady.
15. I have always been available to testify at any proceedings and I am willing to testify as to what I observed on that particular day and to the falsehoods stated in the police report.

Mungin also presented the following affidavit from his original trial counsel, Charles Cofer, who discussed why he did not discover this information prior to trial:

AFFIDAVIT OF CHARLES G. COF-ER
1. My name is Charles G. Cofer, and I am presently a sitting county court judge in the Fourth Judicial Circuit in and for Duval County, Florida. I have previously been subpoenaed to give testimony in post-conviction proceedings in the case of State of Florida v. Anthony Mungin, and this affidavit is given in connection with further post-conviction proceedings.
2. Prior to taking the bench, I served as an Assistant Public Defender for the Fourth Judicial Circuit. During that time, I represented Anthony Mungin at the trial court level in the first-degree capital murder prosecution relating to the death of Betty Jean Woods. As lead counsel for Mr. Mungin, I had primary responsibility for all aspects of the case, and was familiar with the pre-trial discovery provided by the State of Florida.
3. I have recently been provided with an affidavit executed by an individual named George Brown, which states Mr. Brown’s knowledge concerning the death of Betty Jean Woods. I have also reviewed the homicide investigation report authored by Detective Gilbreath dated November 5, 1990. Detective Gil-breath was the lead law enforcement officer in charge of the investigation into Ms. Woods’ murder.
4. Mr. Brown’s affidavit contradicts the version of events as testified to at trial by the State’s key witness, Ronald Kirkland, in many significant ways. Ronald Kirkland was the primary prosecution witness based upon his assertion that he was the first and only person in the Lil’ Champ store, and that he was the one who discovered Ms. Woods after she was shot. Mr. Kirkland testified at trial that he observed a man coming out of the Lil’ Champ Store carrying a brown bag as he entered the store. Kirkland later identified this man as Anthony Mungin. Because there were no eyewitnesses to the murder, Kirkland’s identification of Mr. Mungin was extremely important evidence. Although I attempted to undermine Kirkland’s testimony during cross-examination, any evidence that was available that I could have used to further undermine his credibility (especially his purported identification of Anthony Mungin) would have been useful and would have been presented. I would also expect, under the State’s obligation under Brady v. Maryland, that the prosecution would disclose to me any favorable evidence which could have been used to impeach Kirkland or otherwise undermine his testimony and identification of Mr. Mungin.
5. Prior to trial, the State provided me with a copy of Detective Gilbreath’s homicide report, in which there is brief mention made of George Brown and the information he supposedly told Detective Conn when he was interviewed on the day Ms. Woods was shot. I relied on this police report as being an accurate and truthful account of what Mr. Brown told the police. The version of Mr. Brown’s statement contained in the homicide report generally supported the version of facts provided by Mr. Kirkland, and provided no suggestion that Mr. Brown had information that would be useful to impeach Mr. Kirkland’s version of the events.
7. [sic] Because the information contained in the police report appeared to be of much less importance than the information provided by Kirkland, and due to the fact that Kirkland became the chief prosecution identification witness, our efforts focused on attempting to undermine Kirkland’s testimony at trial. Because I relied on the veracity of the police report, apparently no one from the defense team contacted or spoke with Mr. Brown prior to trial.
8. Mr. Brown’s affidavit contradicts Mr. Kirkland’s version of events, and demonstrates that the police report was inaccurate in terms of explaining the information that Mr. Brown provided to law enforcement. When handling criminal cases, I expected the State to provide me with an accurate recitation of what witnesses told the police, but I was never provided with the information contained in Mr. Brown’s affidavit. Had the State provided me with an accurate report containing the true version of events that Mr. Brown witnessed, this would have made a tremendous difference in terms of the presentation of Mr. Mungin’s case. Every effort would have been made to interview Mr. Brown and to present his conflicting testimony, given that it contradicts and impeaches Kirkland’s version of events and his identification of Anthony Mungin.
9. It is my understanding that Mr. Brown is an unbiased witness with no prior criminal background, in contrast to Mr. Kirkland, who had an extensive criminal history and whose credibility was already in question. It would have been helpful to have a disinterested witness with no criminal background who would have been able to testify and contradict Kirkland’s testimony. However, the State never provided me with an accurate and truthful account of Mr. Brown’s involvement in the case.

Based on the affidavits of Brown and Cofer, Mungin asserts that he is entitled to relief under Brady, Giglio, or newly discovered evidence. The trial court held a Huff hearing to determine whether an evidentiary hearing was needed and then denied relief, finding that Mungin failed to demonstrate prejudice. Determining whether the trial court erred in denying an evidentiary hearing on a successive rule 3.851 motion is a question of law subject to de novo review. Darling v. State, 45 So.3d 444, 447 (Fla.2010). Because the circuit court denied Mungin’s motion without an evidentiary hearing, this Court must ác-cept all factual allegations in the motion as true to the extent they are not conclusively refuted by the record. Id. The Court will affirm the ruling “[i]f the motion, files, and records in the ease conclusively show that the movant is entitled to no relief.” Id.; see also Fla. R.Crim. P. 3.851(f)(5)(B) (providing that a successive postconviction motion in a capital case may be denied without an evidentiary hearing if “the motion, files, and records in the case conclusively show that the movant is entitled to no relief’). The Court will uphold the post-conviction court’s summary denial “if the motion is legally insufficient or its allegations are conclusively refuted by the record.” Darling, 45 So.3d at 447 (quoting Ventura v. State, 2 So.3d 194, 198 (Fla.2009)).

Here, Mungin has raised three claims pertaining to the Brown affidavit: (1) the State violated Brady in failing to disclose the favorable evidence pertaining to Brown; (2) the State violated Giglio by knowingly presenting false evidence; and (3) Brown’s affidavit constitutes newly discovered evidence that mandates a new trial. In looking at the three different claims raised regarding Brown’s testimony, we review the different legal standards involved, starting with Mungin’s Brady claim.

The Fifth and Fourteenth Amendments to the United States Constitution require a prosecutor to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In order to establish a Brady violation, the defendant must demonstrate that (1) 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. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); Way v. State, 760 So.2d 903, 910 (Fla.2000). To meet the materiality prong, the defendant must demonstrate “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Way, 760 So.2d at 913 (quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375). A reasonable probability is a probability sufficient to undermine this Court’s confidence in the outcome. Id.; see also Strickler, 527 U.S. at 290, 119 S.Ct. 1936. However, in making this determination, a court cannot “simply discount ] the inculpatory evidence in light of the undisclosed evidence and deter-min[e] if the remaining evidence is sufficient.” Franqui v. State, 59 So.3d 82, 102 (Fla.2011). “It is the net effect of the evidence that must be assessed.” Jones v. State, 709 So.2d 512, 521 (Fla.1998).

In denying relief on the Brady claim, the postconviction court concluded that Mungin failed to show that the evidence was material. In its order, the post-conviction court noted that there were three differences between what Brown alleged in his affidavit that he told the police officer at the scene of the crime and what was stated in the arrest report, concluding that none of these were material or would undermine confidence in the outcome. Specifically, the court found as follows:

There appear to be three differences between what Mr. Brown alleges in his affidavit that he told the officer on the date of the murder, and what the arrest report indicates Brown told the officer. First, Brown alleges that he told the detective that Kirkland anived after he, Brown, had discovered Ms. Woods and called 911, whereas the report indicated that Brown and Kirkland “entered the store at the same time.” Second, Brown alleges that he did not touch the cash register, whereas the report indicates that he “checked the registers.” Third, Brown alleges that someone had come out of the store as he was entering, but that he told the police that he could not describe the person, whereas the report indicates that he did not “notice” anyone leaving the store as he entered. None of Brown’s other allegations that conflict with Kirkland’s testimony is alleged to have been shared with police.
Even if it were assumed that the State erroneously withheld this information, Defendant suffered no prejudice from the failure to disclose. First, most of the allegedly withheld statements are not particularly material. The second and third discrepancies noted above constitute minor differences in the characterization of events. The only material discrepancy was Mr. Brown’s allegation that he told the officer that he was the only person in the store and that Kirkland did not come into the store until after Brown called 911. While this discrepancy might have been used to impeach Kirkland’s testimony, it does not create a reasonable probability of a different outcome given the importance of Kirkland’s testimony compared to other trial evidence.
It is critical to recognize that the undersigned presided over Defendant’s trial, and has a very vivid recollection of the trial evidence, which was overwhelming even without Kirkland’s testimony.[] Uncontroverted ballistics evidence was presented directly tying Defendant to the shooting of Ms. Woods. When Defendant was arrested, police found a .25-caliber semiautomatic pistol, bullets, and Defendant’s Georgia identification when they searched his house. An analysis showed that the bullet recovered from Woods had been fired from the pistol found at Defendant’s house. Moreover, the robbery/murder in this case was the third in a series of robberies and shootings, all of which were committed with the same gun, the gun found in Defendant’s bedroom. Furthermore, Defendant was positively identified as the person who had committed the first two robbery/shootings, and the car he used in the first two robberies had been stolen from near his home and then abandoned not far from the scene of the instant robbery/murder. Another car stolen from that area ended up next to Defendant’s home with two expended shells from the murder weapon in it. In short, Defendant used the murder weapon in two robbery/shootings not long before the instant robbery/murder, had possession of the murder weapon following the instant robbery/murder, and was directly connected to the two cars used in the three robbery/shootings.
George Brown’s affidavit does not allege that a person other than Defendant robbed and killed Ms. Woods, or that Defendant could not have been the killer. Brown’s allegation could only provide[ ] further impeachment of details of Kirkland’s testimony and his identification of Defendant as the person he saw leaving the store. Even if Defendant’s motion demonstrated that the State improperly withheld information from the defense, that information does not establish a reasonable probability of a different outcome sufficient to undermine confidence in the outcome of the trial. Evaluation of the [sic] all of the evidence introduced at trial demonstrates that it was overwhelming even if Kirkland’s identification could have been called into doubt by Brown’s testimony. As such, Defendant’s claim of a Brady violation is conclusively refuted by the record.

In reviewing this claim, we examine Kirkland’s trial testimony in even more detail. At trial, Kirkland testified that he was the first person to arrive at the location of the shooting. On his way to his girlfriend’s house, he stopped by the Lil’ Champ convenience store to pick up a diet coke and breath savers. As he was going into the store, a man who was carrying a brown paper bag almost knocked him down on his way out of the store. He described the man as being shorter than five feet, six inches and weighing about 130 pounds. Kirkland went into the store, picked up his items, and waited for the clerk, finally noticing that she was lying on the floor. He thought she might have had a seizure so he attempted CPR, and while he was performing CPR, another customer came in and called 911. Kirkland alleged that the other customer looked at the cash register and pulled the drawer open. An officer later came to his home and showed him six or seven pictures. Kirkland identified a picture of Mungin as the man who he saw leaving the store. He further identified Mungin in court as the man who he saw.

On cross-examination, defense counsel confronted Kirkland on a number of inconsistencies. For example, although Kirkland was able to identify Mungin as the person he met, he stated he had only a glimpse of him before they bumped into each other, and since Mungin was then traveling in a different direction away from him, Kirkland saw only the back of his head. However, Kirkland was unable to recall if Mungin wore a hat and could not describe whether he was wearing a light or dark shirt. Further, Kirkland stated that Mungin had long hair that appeared to be in a Jheri-curl style and had a “good bit” of beard growth on him— a description that differed from Mungin’s appearance at the time of the crime. When the police first asked Kirkland to identify the person leaving the crime scene, Kirkland stated that he was not sure if he could recognize the person again, but he would try. When he was shown the pictures, Kirkland reviewed the photographs for approximately fifteen minutes before he picked Mungin’s photo as the person that he saw.

During closing argument, defense counsel stressed the following inconsistencies: at the time that Kirkland noticed the person rushing out of the convenience store, he did not realize it was a murder scene but was thinking about his upcoming date; Kirkland admitted that he saw only the back of the person’s head and not his face; Kirkland admitted he saw only a glimpse as the person rushed away; Kirkland was unable to identify any of the clothing that the person was wearing; and most importantly, Kirkland described the person he saw as having a beard and hair that was “kind of long” even though other eyewitnesses to the Tallahassee shooting (which occurred two days earlier) stated that Mungin’s hair was so short that it looked like he was in the military. Thus, defense counsel asserted that Kirkland’s testimony supported that the person he saw leaving the store could not have been Mungin because a person would be unable to make hair grow significantly in only two days.

During prior postconviction proceedings, this Court discussed the value of Kirkland’s testimony as follows:

Mungin’s first subclaim is that trial counsel was ineffective for failing to sufficiently impeach the testimony of Ronald Kirkland. Specifically, Mungin argues that Cofer should have made the jury aware that Kirkland was on probation at the time of the trial and that warrants had been issued for Kirkland’s arrest on violation of probation and subsequently recalled.
Even if Cofer’s performance was deficient because he failed to discover and use Kirkland’s probationary status as impeachment evidence, Mungin has failed to establish prejudice. Cofer attacked Kirkland’s identification of Mun-gin on cross-examination of Kirkland, and by his cross-examination of the victim of the Monticello shooting and the eyewitness to the Tallahassee shooting, whose descriptions of the perpetrator were different from Kirkland’s. In closing argument, Cofer argued extensively that due to these inconsistencies, Kirkland’s identification could not be believed beyond a reasonable doubt. Moreover, Kirkland testified that he did not tell anyone from the State Attorney’s Office that he was on probation and that he did not have any deals with the State in exchange for his testimony at Mungin’s trial. Mungin does not allege that any deals were made. As for trial counsel’s failure to inform the jury of the recalled warrants for Kirkland’s arrest, because the warrants were not recalled until after the trial it cannot be said that counsel’s performance was deficient.
Even assuming that counsel’s performance was deficient in this regard, we conclude that Mungin has failed to establish prejudice. As noted above, trial counsel attacked Kirkland’s identification of Mungin on cross-examination by bringing out the limited time he had to actually view the perpetrator and the fact that it took him fifteen to twenty minutes to pick Mungin out of the photo lineup. Cofer also brought Kirkland’s identification into question by his cross-examination of the victim of the Monticello shooting and the eyewitness to the Tallahassee shooting, who gave different descriptions of the perpetrator than did Kirkland.

Mungin II, 932 So.2d at 998-99 (footnote omitted). We concluded that Mungin was not entitled to relief because our confidence in the outcome of Mungin’s trial was not undermined.

However, Brown’s testimony completely contradicts Kirkland on a material detail: whether Kirkland could have seen Mungin leaving the convenience store right after the murder. Kirkland, who testified at trial, claimed that he was the first person on the scene and identified Mungin as leaving the murder scene. Brown, in direct contradiction, asserts that he was first on the scene and that no other witnesses were present during the entire time he was searching for the missing clerk. Brown alleges that he found the victim and called 911. In referring to Kirkland, Brown swears in his affidavit that Kirkland came in and “pretended that he had been there the whole time. The man was not there when I got there and he did not find the lady.” If, in fact, the trial judge upon remand determines Brown is being truthful, this would clearly mean that Kirkland was untruthful at trial, which might have been critical testimony for the jury. We are troubled by the possibility that a false police report was submitted and then relied on by defense counsel. Without an evidentiary hearing to explore this issue, we are left with mere speculation as to what in fact occurred, what the police knew, what the prosecutor knew, and whether Kirkland, a witness with an extensive criminal history, was lying when he testified at trial. In reviewing the Brady claim presented, accepting all allegations in the motion as true to the extent they are not conclusively refuted by the record, we cannot agree that the record at this point conclusively shows that the evidence was not material (i.e., that there was not “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different”). Way, 760 So.2d at 913 (quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375). Accordingly, we reverse and remand this claim to the postconviction court for an evidentiary hearing pertaining to Brown and the allegation that the police report was false.

Mungin also asserts that this evidence establishes a Giglio violation. Under Giglio, “a defendant must show that: (1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material.” Rhodes v. State, 986 So.2d 501, 508-09 (Fla.2008). As to the knowledge prong, in Guzman v. State, 868 So.2d 498 (Fla.2003), we have clarified that Giglio is satisfied where the lead detective testifies falsely at trial because the “knowledge of the detective ... is imputed to the prosecutor who tried the case.” Id. at 505.

The materiality prong of Giglio is more defense-friendly than in a Brady claim. See Davis v. State, 26 So.3d 519, 532 (Fla.2009) (“[T]he standard applied under the third prong of the Giglio test is more defense friendly than the test ... applied to a violation under Brady.”), cert. denied, — U.S. -, 130 S.Ct. 3509, 177 L.Ed.2d 1097 (2010). While under Brady, evidence is material if a defendant can show “a reasonable probability that ... the result ... would have been different,” Way, 760 So.2d at 913 (emphasis added), under Giglio, the evidence is considered material simply “if there is any reasonable possibility that it could have affected the jury’s verdict.” Rhodes, 986 So.2d at 509 (emphasis added). Accordingly, for the reasons addressed above, we likewise hold that after reviewing the Giglio claim presented and accepting all allegations in the motion as true to the extent they are not conclusively refuted by the record, we cannot agree that the record at this point conclusively shows that the evidence pertaining to Brown would not affect the jury’s verdict. Accordingly, an evidentiary hearing is needed on this claim as well.

Our analysis is different, however, in considering Mungin’s claim that based on this newly discovered evidence, he is entitled to relief under Jones v. State, 709 So.2d 512 (Fla.1998). In order to be considered newly discovered: (1) “the evidence must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence”; and (2) the evidence “must be of such nature that it would probably produce an acquittal on retrial.” Jones, 709 So.2d at 521 (internal quotation marks and citation omitted). In making this determination, a trial court must “consider all newly discovered evidence which would be admissible at trial and then evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Id. (internal quotation marks omitted). We deny this claim because the information provided by Brown is not of such a nature that it would probably produce an acquittal on retrial. The jury heard significant evidence during the trial that established Mungin as the killer, including testimony that Mungin stole a red Escort and was engaged in similar shootings a few days before the murder, the stolen car was later discovered in Jacksonville, and the shell casing and bullet left at the scene of the murder were identified as matching the gun found at Mungin’s home.

For the reasons addressed above, we reverse and remand the Brady and Giglio claims to the postconviction court for an evidentiary hearing pertaining to Brown and the allegation that the police report was false. We express no opinion on the merits of these claims. The parties shall proceed in an expedited manner, and an evidentiary hearing on this claim shall be held and an order entered within 120 days of the remand.

It is so ordered.

PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

POLSTON, J., concurs in part and dissents in part with an opinion, in which CANADY, C.J., concurs.

POLSTON, J.,

concurring in part and dissenting in part.

I agree with the majority’s decision to affirm the trial court’s summary denial of Mungin’s newly discovered evidence claim. However, unlike the majority, I would also affirm the summary denial of Mungin’s Brady and Giglio claims because Mungin cannot demonstrate materiality under either Brady or Giglio.

Although Brown’s affidavit calls into question whether Kirkland could have seen Mungin leaving the store shortly after the shooting, Kirkland’s testimony was already called into question based on other significant inconsistencies, which were pointed out during the trial and stressed during closing arguments. For example, Kirkland’s testimony conflicted with other testimony that Mungin had very short hair at the time of the murder. In fact, defense counsel made a convincing argument that Kirkland’s testimony actually supported that Mungin could not be the person leaving the store. Based on a review of Kirkland’s testimony and the problems with it, it is unclear whether the jury put any weight in it or whether it was even incriminating.

In contrast to the questionable strength of Kirkland’s testimony, the jury was presented with significant evidence that Mun-gin committed the murder. Specifically, the jury was presented with evidence that the murder weapon was found at Mungin’s home days after the murder, that Mungin used this same gun to shoot two other store clerks just days before the murder, and that Mungin was linked to the stolen vehicles involved in the crime spree. Brown’s affidavit does not call any of this evidence into question and does not provide any support that Mungin was not involved. Therefore, materiality cannot be established under either Brady or Giglio. See Way v. State, 760 So.2d 903, 913 (Fla.2000) (explaining that the materiality prong under Brady is met if the defendant demonstrates “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different”) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (plurality opinion)); Rhodes v. State, 986 So.2d 501, 509 (Fla.2008) (explaining that evidence is material under Giglio “if there is any reasonable possibility that it could have affected the jury’s verdict”).

Accordingly, I respectfully concur in part and dissent in part.

CANADY, C.J., concurs.

      . We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      . Mungin also alleges that existing procedures utilized by Florida in carrying out executions by lethal injection violate the Eighth Amendment; however, he provides no additional factual allegations that would alter our previous decisions. See Schoenwetter v. State, 46 So.3d 535, 550 (Fla.2010); Tompkins v. State, 994 So.2d 1072, 1081 (Fla.2008); Lightbourne v. McCollum, 969 So.2d 326 (Fla.2007). We deny this claim without further discussion.

        .Williams v. State, 110 So.2d 654 (Fla.1959).

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      . We caution that trial courts must decide these postconviction matters on an objective basis. See, e.g., Guzman v. State, 941 So.2d 1045, 1051 n. 4 (Fla.2006) (recognizing that trial courts are to make an objective determination as to the effect of a Giglio error; it cannot be a subjective assessment). In this case, because the motion was denied without an evidentiary hearing, we must accept Mun-gin's allegations as true and determine prejudice by reviewing whether our confidence in the outcome is undermined.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jeffrey Robert HASTINGS, Petitioner, v. STATE of Florida, Respondent.
    No. SC11-205.
    Supreme Court of Florida.
    Nov. 17, 2011.
    Rehearing Denied Feb. 2, 2012.

      Jeffrey • Robert Hastings, Jasper, FL, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, for Respondent.
   PER CURIAM.

Jeffrey Robert Hastings, an inmate in state custody, filed a pro se petition for writ of mandamus with this Court. Hastings’ petition is the twenty-seventh notice or extraordinary writ petition he has filed with this Court since 2000. For many years, Hastings has been unsuccessfully attempting to collaterally attack his conviction or sentence for escape in State v. Hastings, Case No. 74-179-CF (Seventh Judicial Circuit), and his convictions or sentences for manslaughter in State v. Hastings, Case No. 79-3126-CFA02 (Fifteenth Judicial Circuit). We now determine that, because Hastings has abused the limited judicial resources of this Court, sanctions are warranted.

In 1974, Hastings entered a guilty plea to escaping from state custody and was sentenced by the Circuit Court of the Seventh Judicial Circuit in and for Putnam County, Florida, to a fifteen-year term in prison. In a separate case, Hastings was convicted of six counts of manslaughter and sentenced in 1980 by the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, as a habitual offender to six consecutive thirty-year terms in prison.

After his convictions and sentences in both cases became final, Hastings filed numerous pro se filings in this and other courts. In August 1998, the Fifteenth Judicial Circuit issued an order prohibiting Hastings from filing any further pro se filings involving his manslaughter convictions and sentences. The Fifth District Court of Appeal, on June 1, 2001, issued an opinion prohibiting Hastings from filing any further pro se filings involving his conviction and sentence for escape. Hastings v. State, 788 So.2d 342 (Fla. 5th DCA 2001). On January 2, 2008, the Fourth District Court of Appeal issued an opinion prohibiting Hastings from filing any further pro se filings involving his convictions and sentences for manslaughter. Hastings v. Krischer, 840 So.2d 267, 272 (Fla. 4th DCA 2003).

On or about December 17, 2010, Hastings filed the instant petition for writ of mandamus with this Court. In his petition, Hastings requested that we compel the Office of the Public Defender for the Fifteenth Judicial Circuit to assist him in obtaining postconviction relief. By order dated May 18, 2011, we dismissed Hastings’ mandamus petition. Hastings v. State, 64 So.3d 117 (Fla.2011) (table). Concurrent with the dismissal of his mandamus petition, we expressly retained jurisdiction to impose possible sanctions, and directed Hastings to show cause why this Court should not reject any future pro se filings submitted by him to this Court that pertain to his convictions or sentences in Case No. 74-179-CF and Case No. 79-3126-CFA02.

In his response to the order to show cause, Hastings argues that he should not be sanctioned for diligently pursuing post-conviction relief. Hastings contends that his lengthy pro se filing history in this Court is the result of his lack of legal sophistication and the failure of the lower courts to timely correct his allegedly illegal sentences. In addition, Hastings asserts that not all of his pro se filings in this Court pertained to his convictions and sentences, and that a portion of his filings with this Court concerned parole and gain-time matters.

Upon due consideration of Hastings’ response, we find that his arguments are without merit. Hastings’ voluminous pro se filing history with this Court has necessitated our scrutiny. After reviewing his pro se filings, we find that, while some of the proceedings initiated by Hastings have pertained to parole and gain-time matters, an overwhelming majority of the twenty-seven proceedings initiated by Hastings' have repeatedly attempted to collaterally attack his convictions or sentences. Each proceeding initiated by Hastings concerning his convictions or sentences was either, like the instant petition, devoid of merit or inappropriate for review in this Court. Hastings’ response shows neither justification for using, nor remorse about misusing the limited judicial resources of this Court. We conclude that, unless he is stopped, Hastings will continue to file meritless requests for relief in this Court regarding his convictions or sentences.

This Court has, when necessary, exercised its inherent judicial authority to sanction abusive litigants. See, e.g., Johnson v. Rundle, 59 So.3d 1080 (Fla.2011); Steele v. State, 14 So.3d 221 (Fla.2009). In doing so, this Court has repeatedly emphasized the necessity for court-imposed sanctions to preserve every citizen’s right to access the courts. E.g., Peterson v. State, 817 So.2d 838, 840 (Fla.2002). Court-imposed sanctions safeguard this right by permitting the Court to devote its finite resources to conduct timely reviews of legitimate filings. See, e.g., Johnson, 59 So.3d at 1082; Steele, 14 So.3d at 223.

In accordance with these principles, we now direct the Clerk of this Court to reject any future pleadings or other requests for relief submitted by Jeffrey Robert Hastings that are related to his convictions or sentences in Case No. 74-179-CF and Case No. 79-3126-CFA02 unless such filings are signed by a member in good standing of The Florida Bar. Under the sanction herein imposed, Hastings may only petition the Court about his convictions or sentences in Case No. 74-179-CF and Case No. 79-3126-CFA02 through the assistance of counsel whenever such counsel determines that the proceeding may have merit and can be filed in good faith. However, Hastings’ abusive pro se filings related to his convictions or sentences must immediately end.

Furthermore, since we have in this opinion found that Hastings has repeatedly initiated frivolous proceedings, we direct the Clerk of this Court, pursuant to section 944.279(1), Florida Statutes (2011), to forward a certified copy of this opinion to the Department of Corrections’ institution or facility where Hastings is incarcerated. See Steele, 14 So.3d at 224.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(8), Fla. Const.

      . See Pettway v. State, 776 So.2d 930, 931 (Fla.2000) (stating that the Court generally will not consider the repetitive petitions of persons who have abused the judicial processes of the lower courts such that they have been barred from filing certain actions there).

      . See Hastings v. Fla. Parole Comm., No. SC10-1717 (Fla. Oct. 25, 2010) (mandamus petition transferred to the circuit court); Hastings v. McNeil, No. SC10-1160 (Fla. Sept. 6, 2010) (mandamus petition transferred to the circuit court); Hastings v. McNeil, No. SC10-586 (Fla. May 4, 2010) (prohibition petition transferred to the district court); Hastings v. State, 44 So.3d 107 (Fla.2010) (table) (mandamus petition dismissed); Hastings v. McNeil, No. SC09-1999 (Fla. Dec. 9, 2009) (mandamus petition transferred to the circuit court); Hastings v. State, 12 So.3d 220 (Fla.2009) (table) (mandamus petition dismissed); Hastings v. McNeil, 3 So.3d 317 (Fla.2008) (table) (habeas corpus petition dismissed); Hastings v. State, 996 So.2d 212 (Fla.2008) (table) (denying discretionary review); Hastings v. State, 993 So.2d 512 (Fla.2008) (table) (all writs petition dismissed for lack of jurisdiction); Hastings v. McDonough, 965 So.2d 122 (Fla.2007) (table) (habeas corpus petition dismissed); Hastings v. McDonough, 945 So.2d 1290 (Fla.2006) (table) (habeas corpus petition dismissed); Hastings v. State, 898 So.2d 80 (Fla.2005) (table) (habeas corpus petition dismissed as duplicative); Hastings v. State, 902 So.2d 790 (Fla.2005) (table) (denying discretionary review); Hastings v. State, 907 So.2d 518 (Fla.2005) (table) (habeas corpus petition dismissed as unauthorized); Hastings v. State, 902 So.2d 790 (Fla.2005) (table) (ha-beas corpus petition denied); Hastings v. State, No. SC03-1522 (Fla. Sept. 19, 2003) (habeas corpus petition transferred to the circuit court); Hastings v. State, 884 So.2d 22 (Fla.2004) (table) (habeas corpus petition dismissed for lack of jurisdiction); Hastings v. State, 821 So.2d 296 (Fla.2002) (table) (mandamus petition denied in part and dismissed in part); Hastings v. State, 826 So.2d 992 (Fla.2002) (table) (habeas corpus petition denied as procedurally barred); Hastings v. State, 805 So.2d 807 (Fla.2002) (table) (denying discretionary review); Hastings v. State, 807 So.2d 653 (Fla.2001) (table) (habeas corpus petition denied as procedurally barred); Hastings v. State, No. SC01-800 (Fla. Aug. 4, 2001) (mandamus petition transferred to the district court); Hastings v. State, No. SC00-1836 (Fla. Nov. 17, 2000) (habeas corpus petition transferred to the circuit court); Hastings v. State, No. SC00-1054 (Fla. June 13, 2000) (habeas corpus petition transferred to the circuit court); Hastings v. State, 762 So.2d 916 (Fla.2000) (table) (habeas corpus petition denied as procedurally barred); Hastings v. State, 753 So.2d 564 (Fla.2000) (table) (habe-as corpus petition voluntarily dismissed).

      . The United States Supreme Court has stated that "[ejvery paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution's limited resources. A part of the Court's responsibility is to see that these resources are allocated in a way that promotes the interests of justice.” In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989).


text:
    Ismail A.H. AKBAR, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0428.
    District Court of Appeal of Florida, First District.
    May 2, 2011.
    Ismail A.H. Akbar, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s order summai'ily denying his rule 3.800(a) motion. We affirm.

This is at least the ninth postconviction motion filed by Appellant concerning his 1989 conviction. The exact same claim raised in the current motion has been denied multiple times by the trial court, and this court affirmed the denial of this claim on the merits in Akbar v. State, 808 So.2d 215 (Fla. 1st DCA 2002) (table). Accordingly, we find this appeal to be frivolous and direct the Clerk to forward a certified copy of this opinion to the Department of Corrections for appropriate disciplinary action pursuant to section 944.279, Florida Statutes.

AFFIRMED.

DAVIS, LEWIS and WETHERELL, JJ., concur.


author: WALLACE, Judge.

text:
    Scott Lee MULLIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-965.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2011.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Scott Lee Mullís appeals his judgment and sentences for five counts of obtaining a controlled substance by withholding information in violation of section 893.13(7)(a)(8), Florida Statutes (2008), following his guilty plea. On appeal, Mr. Mullis challenges the denial of his motion to suppress his pharmacy records and statements obtained from his doctors or their employees. A detective obtained the pharmacy records and statements during an investigation that took place before Mr. Mullis’s arrest on the charges of withholding information. We conclude that the detective properly obtained Mr. Mullis’s pharmacy records. But for the reasons discussed below, we conclude that the detective’s conduct in obtaining the statements from Mr. Mullis’s doctors violated section 456.057(7)(a), Florida Statutes (2008 & 2009), and Mr. Mullis’s right of privacy under article 1, section 23, of the Florida Constitution. Thus we reverse the order on review to the extent that it denied suppression of the statements and remand for further proceedings consistent with this opinion.

I. THE FACTS ELICITED AT THE HEARING ON THE MOTION TO SUPPRESS

Douglas Fowler, a narcotics investigator for the City of Temple Terrace, decided to investigate Mr. Mullis for possible “doctor shopping” after receiving information about Mr. Mullis from another officer. Detective Fowler initiated his investigation by sending a blast fax to approximately eighty pharmacies, inquiring whether Mr. Mullis had filled prescriptions for controlled substances.

Detective Fowler received responses from ten pharmacies that provided profiles for Mr. Mullis. The pharmacy profiles revealed that Mr. Mullis had filled prescriptions for oxycodone, a controlled substance, from six different doctors within thirty days “broken down over a time period.” And Detective Fowler determined from this information that Mr. Mullis had obtained 4102 oxycodone pills over a six-month period. As a result, Detective Fowler believed that Mr. Mullis was doctor shopping.

Detective Fowler continued his investigation by contacting the offices of the six doctors identified on the pharmacy profiles and speaking with either the doctors or their employees. Detective Fowler did not obtain any written records, but he did obtain statements in response to his inquiries. In each instance, he asked the same questions:

One, if they identified [Mr. Mullís] by [his] driver’s license so that I can verify that they are dealing with the same person that I’m dealing with. And two, I asked them if they had any knowledge or if [Mr. Mullís] told them that they were obtaining — or a controlled substance from another doctor within thirty days of obtaining it from them.

Detective Fowler “also asked them [if] they [had] known or had [Mr. Mullís] told them would they still have continued to see — give [him] the medication.”

Detective Fowler stated that employees in each of the doctors’ offices confirmed that Mr. Mullís was a patient and that Mr. Mullís had been identified by his driver’s license. Detective Fowler also learned from each office that Mr. Mullís “did not tell them that he was seeing another doctor and obtaining controlled medications” and that Mr. Mullís would not have received a prescription for a controlled substance if they had this information. Detective Fowler asserted that he did “not ask them exactly what it [was] that they [were] giving” Mr. Mullís. But he acknowledged on cross-examination that he “confirmed that that very doctor that you’re talking to or representative of that doctor has in fact given [Mr. Mullís] [0]xy[C]ontin,” and that as “part of [his] investigation [he was] confirming which doctors have given [Mr. Mullís] [O]xy[C]ontin.” Detective Fowler acknowledged that he had obtained all of these statements without a subpoena and without providing Mr. Mullís with notice of his intent to obtain the information.

II. THE CIRCUIT COURT’S RULING

After the hearing on the motion to suppress, the circuit court entered a written order denying the motion. In its order, the circuit court divided its analysis between the pharmacy profiles and the statements from the doctors’ offices. Citing the First District’s decision in State v. Carter, 23 So.3d 798 (Fla. 1st DCA 2009), the circuit court denied the motion to suppress the information in the pharmacy profiles, concluding that Detective Fowler had lawfully obtained this information under section 893.07(4).

After it denied suppression of the pharmacy profiles, the circuit court turned to the statements that Detective Fowler obtained from Mr. Mullis’s doctors. In its order, the circuit court noted that it was “aware of section 456.057(7)(a)(3), Florida Statutes, which governs disclosui-e of patient records by records owners, which applies to physicians.” In ruling that Detective Fowler had not violated section 456.057(7)(a) or Mr. Mullis’s privacy rights, the circuit court stated as follows:

The physicians are not state actors and could have declined to answer any law enforcement question regarding any person by citing section 456.057(7), Florida Statutes. The Detective lawfully obtained records from the pharmacies and followed up by calling each physician. The Detective made a limited oral inquiry of each physician as a logical followup to validate information received from the pharmacies. The Detective testified that he would have discontinued the investigation of a particular prescription if any of the physicians had responded “yes” to the question of whether they would have prescribed a drug to [Mr. Mullís] had they known he was obtaining drugs from other doctors. [The Detective] did not request any written records from the physicians or make inquiry into any other facet of the medical history, conditions or treatment of [Mr. Mul-lís]. The Court concludes that on these facts [Mr.Mullis’s] constitutional rights were not violated by the State.

(Emphasis added.) Thus the circuit court found that the verbal statements that Detective Fowler received in response to his questions directed to the doctors or their employees did not concern Mr. Mullis’s medical history, conditions, or treatment. It thus implicitly concluded that the statements did not constitute “reports and records relating to [Mr. Mullis’s] examination or treatment” under section 456.057(6) and that Detective Fowler’s failure to comply with section 456.057(7)(a)(3) did not warrant suppression of the statements.

Mr. Mullís subsequently entered a guilty plea with the understanding that he was reserving his right to appeal the denial of his motion to suppress. The parties and the circuit court agreed that its ruling on Mr. Mullis’s motion to suppress was dis-positive, and the record supports that determination. Accordingly, the merits of the circuit court’s order are properly before us on appeal. See Fla. R. App. P. 9.140(b)(2)(A)(i).

III. THE STANDARD OF REVIEW ON APPEAL

As we noted in State v. K.S., 28 So.3d 985 (Fla. 2d DCA 2010), we employ a mixed standard of review in addressing a trial court’s order on a motion to suppress.

The trial court’s “determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However, the circuit court’s determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review.” State v. Clark, 986 So.2d 625, 628 (Fla. 2d DCA 2008) (citation omitted).

Id. at 987.

IV. DISCUSSION

A. The Pharmacy Records

After the circuit court entered its written order on Mr. Mullis’s motion to suppress, this court adopted the First District’s reasoning in Carter in State v. Tamulonis, 39 So.3d 524 (Fla. 2d DCA 2010), review denied, 52 So.3d 662 (Fla.2011). We concluded that section 893.07(4) authorizes “law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances” to obtain an individual’s pharmacy records related to controlled substances without a warrant, a subpoena, or prior notice to the patient without violating that individual’s constitutional privacy rights. Id. at 528 (quoting § 893.07(4)). Because Detective Fowler is a law enforcement officer, he was entitled to obtain Mr. Mullis’s pharmacy records under section 893.07(4), see id., and we affirm without further discussion that part of the circuit court’s order denying suppression of the pharmacy profiles.

B. The Information Obtained From the Doctors’ Offices

Individuals enjoy a right of privacy in their medical records under article I, section 23, of the Florida Constitution. State v. Johnson, 814 So.2d 390, 393 (Fla.2002); see also Barker v. Barker, 909 So.2d 333, 337 (Fla. 2d DCA 2005) (citing Johnson in support of the foregoing proposition). Here, Mr. Mullís does not challenge the State’s ability to obtain his medical records under section 456.057 without violating his constitutional privacy rights, but he argues that Detective Fowler violated his privacy rights by acquiring information from his doctors without first obtaining his authorization or a subpoena issued upon proper notice as required by section 456.057(7)(a)(3).

Section 456.057 provides in pertinent part as follows:

(6) Any health care practitioner licensed by the department or a board within the department who makes a physical or mental examination of, or administers treatment or dispenses legend drugs to, any person shall, upon request of such person or the person’s legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment, including X rays and insurance information. ...
(7)(a) Except as otherwise provided in this section ... such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization under the following circumstances:
3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.

(Emphasis added.) Thus, to determine whether Detective Fowler’s conduct violated section 456.057(7)(a) and Mr. Mullis’s constitutional privacy rights, we must first determine whether the statements that he obtained from Mr. Mullis’s doctors constituted “reports and records relating to [the] examination or treatment” of Mr. Mullís. § 456.057(6); see also State v. Herc, 67 So.3d 266 (Fla. 2d DCA 2011) (directing the trial court to address on remand whether statements obtained from a defendant’s doctors’ offices were medical records as defined by section 456.057(6)); State v. Shukitis, 60 So.3d 406, 409 (Fla. 2d DCA 2010) (stating same).

For purposes of our analysis, the information that Mr. Mullis’s doctors or their employees provided to Detective Fowler may be grouped into four categories: (1) statements confirming that Mr. Mullís was a patient, (2) statements that the doctors had prescribed controlled substances to Mr. Mullis, (3) statements that Mr. Mullis did not disclose his receipt of a prescription for a controlled substance from another provider within the preceding thirty days, and (4) statements that the doctors would not have prescribed a controlled substance to Mr. Mullis if they had known that he had received a prescription for a controlled substance within the preceding thirty days.

First, we observe that the circuit court did not address in its order, and Mr. Mul-lis does not challenge on appeal, Detective Fowler’s obtaining statements from Mr. Mullis’s doctor’s offices confirming his identity as a patient. Thus we do not address whether such statements are entitled to protection under section 456.057(7)(a).

The next category of information that Mr. Mullis’s doctors or their employees provided to Detective Fowler was the issuance by each of the doctors of a prescription to Mr. Mullis for a controlled substance. We conclude that this information constitutes a report relating to Mr. Mullis’s examination or treatment. A doctor’s prescription of a medication is a form of treatment.

Similarly, we conclude that the statements to Detective Fowler that Mr. Mullis had not told his doctors that he had received a prescription for a controlled substance from another provider within the last thirty days constitute reports relating to Mr. Mullis’s examination or treatment under section 456.057(6). Detective Fowler stated that each of Mr. Mullis’s doctors or their employees advised him that the doctor would not have prescribed a controlled substance to Mr. Mullis if the doctor had known that Mr. Mullis had been prescribed a controlled substance by another physician within the last thirty days. Thus the information that was purportedly withheld affected decisions about Mr. Mullis’s treatment. It follows that the statements about what Mr. Mullis told his doctors concerning his prior prescriptions constitute reports relating to his examination or treatment.

Finally, the statements that Mr. Mullis’s doctors would not have prescribed a controlled substance to Mr. Mullis if Mr. Mullis had disclosed a prior prescription constitute reports relating to his examination or treatment because they also involve treatment decisions. Accordingly, except for the statements confirming Mr. Mullis’s status as a patient, we conclude that all of the statements that Detective Fowler obtained from Mr. Mullis’s doctors or their employees constituted reports related to Mr. Mullis’s examination and treatment. Thus Detective Fowler should not have obtained those statements without Mr. Mullis’s written authorization or the requisite notice and subpoena under section 456.057(7)(a)(3). We turn now to the ef-feet of our conclusions on Mr. Mullis’s motion to suppress.

C. The Effect of Our Holding on Mr. Mullis’s Motion to Suppress

In State v. Sun, 82 So.3d 866, 2011 WL 2135646 (Fla. 4th DCA 2011), the Fourth District recently addressed the suppression of statements obtained from the defendant’s doctors in violation of section 456.057. The Fourth District noted that “[w]hen law enforcement does not comply with the procedural requirements of statutes like the ones here, the items obtained should be suppressed when law enforcement made no good faith effort to comply.” Id. at 873; see also Johnson, 814 So.2d at 394 (holding that the exclusionary rule may apply when the State improperly obtains a defendant’s hospital records in violation of section 395.3025, Florida Statutes (1997)). The Fourth District then stated that it agreed with the trial court’s implicit finding in the case before it that the detective in that case displayed a lack of good faith in failing to comply with section 456.057(8) and that the statements should be suppressed. 82 So.3d at 873-74.

Here, the circuit court concluded that Detective Fowler did not violate section 456.057(7)(a) when he obtained the statements from Mr. Mullis’s doctors. Thus it did not reach the issue of whether Detective Fowler displayed a lack of good faith in failing to comply with the statute. However, when asked at the hearing on the motion to suppress whether he made any attempt to provide Mr. Mullís with notice or to obtain a court-issued subpoena prior to contacting Mr. Mullis’s doctors, Detective Fowler stated, “Absolutely not.” Because Detective Fowler made absolutely no attempt to comply with section 456.057(7)(a)(3) before obtaining the statements from Mr. Mullis’s doctors or their employees, we conclude that his conduct was not in good faith. Cf. Johnson, 814 So.2d 390 (observing that because the State had repeatedly attempted to comply with the statutory notice requirements before subpoenaing the defendant’s hospital records, its conduct was in good faith). Accordingly, we conclude that the statements from Mr. Mullis’s doctors or their employees- — -with the exception of the statements confirming Mr. Mullis’s status as a patient — should be suppressed. See Sun, 82 So.3d at 873-74.

Y. CONCLUSION

We affirm the order on Mr. Mullis’s motion to suppress to the extent that it denies suppression of the pharmacy records. We reverse the order to the extent that it denies suppression of the statements that Detective Fowler obtained from Mr. Mullis’s doctors or their employees, except as noted above, and remand for the circuit court to enter an order suppressing those statements. We note that because our decision reverses in part the circuit court’s ruling on Mr. Mullis’s motion to suppress, Mr. Mullis may be entitled to withdraw his plea on remand. See England v. State, 46 So.3d 127, 130 (Fla. 2d DCA 2010) (holding that where “[i]t [was] unknown whether [the defendant] would have pleaded guilty if his motion to suppress the statements had been granted,” he should be given the option of withdrawing his plea on remand).

Affirmed in part, reversed in part, and remanded.

SILBERMAN, C.J., and CASANUEVA, J., Concur.

      . In his motion, Mr. Mullis also sought to suppress statements that he made following his arrest. The circuit court’s order does not address Mr. Mullis's postarrest statements, and Mr. Mullis makes no argument about those statements on appeal. Thus we do not address Mr. Mullis’s postarrest statements in this opinion.

      . "Doctor shopping refers to the practice of a patient requesting care from multiple physicians, often simultaneously, without making efforts to coordinate care or informing the physicians of the multiple caregivers. This usually stems from a patient’s addiction to, or reliance on, certain prescription drugs or other medical treatment.” Doctor Shopping (Aug. 2, 2011, 2:05 p.m.), http://en.wikipedia. org/w/index.php?title=Doctor-shopping & ol-did=442676844. Violations of section 893.13(7)(a)(8) are commonly referred to as "doctor shopping.'?D See generally Knipp v. State, 35 Fla. L. Weekly D2898, D2899 (Fla. 4th DCA Dec.22, 2010) (referring to section 893.13(7)(a)(8) as the "doctor shopping” statute).

      . § 893.03(2)(a)(l)(o).

      . The circuit court’s order states that Detective Fowler determined that Mr. Mullis received 4102 pills, but our review of the transcript of the suppression hearing reflects that Detective Fowler testified that Mr. Mullis received 4150 pills. The pharmacy profiles were entered into evidence at the hearing, so the circuit court may have recalculated the number based upon its review of the pharmacy profiles.

      . "OxyContin is the brand name of a time-release formula of oxycodone produced by the pharmaceutical company Purdue Pharma.” Oxycodone (Aug. 22, 2011, 8:14 p.m.), http:// en.wikipedia.org/w/index.php?title= Oxycodone & oldid=446205154.

      . See State v. Sun, 82 So.3d 866, 870 (Fla. 4th DCA 2011) (noting that “section 456.057 represents a ‘legislative attempt to balance a patient’s privacy rights against legitimate access to’ the patient’s medical information” and that ”[t]he statute establishes procedural safeguards which, if followed, allow the state to obtain protected information without contravening the privacy protection of [a]rticle I, [sjection 23” (quoting Johnson, 814 So.2d at 393)).

      . We note that in Sun, 82 So.3d at 871-72, the Fourth District analyzed the investigating officer’s conduct in obtaining statements similar to those in this case from the defendant's doctors under the physician-patient privilege established in section 456.057(8). Section 456.057(8) makes confidential and restricts disclosure of "information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient.” Neither of the parties nor the circuit court addressed the application of the physician-patient privilege or section 456.057(8) to the statements in this case. Although we recognize that section 456.057(8) may provide a separate ground for suppression of the statements that Detective Fowler obtained from Mr. Mullis's doctors or their employees, that issue is beyond the scope of this opinion.

      . The statements confirming Mr. Mullis’s identity as a patient arguably do not constitute "reports ... relating to [Mr. Mullis’s] examination or treatment” because his status as a patient and the confirmation of his identity through his driver’s license, while suggesting that Mr. Mullis was examined or treated, do not disclose information about his examination or treatment. However, Mr. Mullis’s identity as a patient is arguably confidential under section 456.057(8), which protects "information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient,” because his physicians presumably learned and confirmed his identity in the course of providing him care and treatment. See Sun, 82 So.3d at 872 (noting that section 456.057(8) creates a broad doctor-patient privilege and that its language does not limit the privilege to "information necessary for treatment”). As noted above, this issue is not properly before us for resolution in this appeal.

      . We note that testimony by Detective Fowler at trial concerning the information he collected from the pharmacies and the doctors during his investigation of Mr. Mullís would constitute hearsay. § 90.801, Fla. Stat. (2010). Such testimony would be inadmissible at trial over a timely defense objection. § 90.802. We express no opinion on how the State-in a trial-might prove its doctor-shopping case against Mr. Mullís.