The opinion
Third District Court of Appeal
State of Florida
Opinion filed February 3, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1599
Lower Tribunal No. 20-18188
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Dani Shimon,
Petitioner,
vs.
R. B.,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Martin
Zilber, Judge.
Stok Kon + Braverman, and Robert A. Stok, Joshua R. Kon, and Yosef
Kudan (Fort Lauderdale), for petitioner.
Horowitz Law, and Adam D. Horowitz and Elana B. Goodman (Fort
Lauderdale); Kuehne Davis Law, P.A., and Benedict P. Kuehne and Michael
T. Davis, for respondent.
Before LOGUE, SCALES, and LINDSEY, JJ.
LOGUE, J.
Dani Shimon petitions for a writ of certiorari to quash part of an order
requiring him to provide documents in discovery that he contends violates
his Fifth Amendment right against self-incrimination. Under the authority of
Wahnon v. Coral & Stones Unlimited Corp., No. 3D19-2387, 2020 WL
7049998 (Fla. 3d DCA Dec. 2, 2020), which was not available to the trial
court at the time of its ruling, we issue the writ and quash paragraph one of
the order under review.
R.B. sued Shimon alleging he sexually battered her on board his boat
when it was located in the waters off north Miami-Dade County or south
Broward County. R.B. reported the assault to three separate law
enforcement agencies: the Hallandale Beach Police Department; the Miami-
Dade County Police Department; and the Broward State Attorney’s Office.
The Hallandale Beach Police closed their investigation noting that the
Broward State Attorney declined to prosecute due to “the time delay and the
victim’s indecisiveness to come forward in the beginning, as well as
jurisdictional issues.” The Broward State Attorney never filed an information
or formally charged Shimon. There is no indication that Shimon was ever
arrested or requested to appear in court.
Finding no reasonable danger of prosecution, the trial court entered a
blanket order overruling Shimon’s Fifth Amendment objection without
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addressing each category of the requested documents individually. The
order further provided Shimon would be fined $1,000 for each day he failed
to produce the documents after the expiration of seven days. Shimon timely
filed a petition for certiorari with this Court.
“To grant certiorari relief, there must be: ‘(1) a material injury in the
proceedings that cannot be corrected on appeal (sometimes referred to as
irreparable harm); and (2) a departure from the essential requirements of the
law.’” Fla. Power & Light Co. v. Cook, 277 So. 3d 263, 264 (Fla. 3d DCA
2019) (quoting Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87
So. 3d 712, 721 (Fla. 2012)). An order compelling testimony in violation of
the Fifth Amendment privilege against self-incrimination qualifies as
irreparable harm justifying the issuance of a writ of certiorari. See Aguila v.
Frederic, 45 Fla. L. Weekly D2043 (Fla. 3d DCA Aug. 26, 2020).
The standard for deciding whether the Fifth Amendment has been
properly invoked in a civil proceeding is whether “‘the civil litigant has
reasonable grounds to believe that direct answers to deposition or
interrogatory questions would furnish a link in the chain of evidence needed
to prove a crime against him.’” Id. at *2 (quoting Rainerman v. Eagle Nat’l
Bank of Mia., 541 So. 2d 740, 741 (Fla. 3d DCA 1989)). The United States
Supreme Court “has always broadly construed [the Fifth Amendment’s]
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protection to assure that an individual is not compelled to produce evidence
which later may be used against him as an accused in a criminal action.”
Maness v. Meyers, 419 U.S. 449, 461 (1975).
Here, future prosecution of this action is not barred by the statute of
limitations, 1 legal immunity from prosecution has not been granted, 2 and the
protection against double jeopardy has not been established. The Broward
State Attorney’s decision not to prosecute was based in part on the
conclusion that it had “no reasonable likelihood of conviction.” A
discretionary decision not to prosecute because of a lack of evidence can
quickly be reversed when new evidence comes to light. One can easily
envision circumstances in which a disclosure made by Shimon could furnish
a link in the chain of evidence needed to prove a crime against him and
cause the law enforcement agencies to re-open their investigations. For that
matter, the Broward State Attorney’s decision not to prosecute hardly
prevents the Miami-Dade State Attorney from pursuing prosecution and the
1
The Hallandale Beach Police Department originally classified this action as
a violation of section 794.011(4), Florida Statutes (2019). Because R.B.
reported the battery within 72 hours, there is no applicable statute of
limitations and the prosecution “may be commenced at any time.” §
775.15(13)(a).
2
A notation in a police report that the State Attorney declined to prosecute
is not a grant of immunity.
4
jurisdictional issues that impacted prosecution in Broward may not apply in
Miami-Dade.
In these circumstances, we agree with Shimon that the possibility that
a criminal investigation could be re-opened in the future is not so remote as
to eliminate his reasonable fear of prosecution. For this reason, he cannot
be compelled to give testimony over a claim of his Fifth Amendment right.
Wahnon, 2020 WL 7049998, at *4.
Thus, this case presents a classic example of where Shimon’s Fifth
Amendment privilege against self-incrimination conflicts with R.B.’s right to
access the courts. “In these circumstances, the trial court must fashion a
remedy that has the least intrusive impact on the assertion of the Fifth
Amendment privilege while alleviating the prejudice to the other party and
providing a ‘just, speedy, and inexpensive determination’ of the underlying
dispute.” Id. (quoting Fla. R. Civ. P. 1.010).
Petition granted in part; order quashed in part.
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