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IN THE SUPREME COURT OF FLORIDA
CARLOS M. GONZALEZ,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
Case No. SC13-2052
ON DISCRETIONARY REVIEW FROM THE
THE DISTRICT COURT OF APPEAL,
FOURTH DISTRICT OF FLORIDA
JURISDICTIONAL BRIEF OF RESPONDENT
PAMELA JO BONDI
ATTORNEY GENERAL
CELIA TERENZIO
CHIEF ASSISTANT ATTORNEY GENERAL
Fla. Bar No. 656879
LAURA FISHER
ASSISTANT ATTORNEY GENERAL
Fla. Bar No. 0337020
Office of the Attorney General
1515 North Flagler Drive
Suite 900
West Palm Beach, FL 33401
Primary E-Mail:
CrimAppWPB@myfloridalegal.com
(561) 837-5000
(561) 837-5108(Fax)
COUNSEL FOR RESPONDENT
Electronically Filed 11/20/2013 02:37:55 PM ET
RECEIVED, 11/20/2013 14:38:36, John A. Tomasino, Clerk, Supreme Court
TABLE OF CONTENTS
PAGE#
TABLE OF CONTENTS ......................................... ii
TABLE OF CITATIONS ....................................... iii
PRELIMINARY STATEMENT ...................................... 1
STATEMENT OF THE CASE AND FACTS ............................ 2
SUMMARY OF ARGUMENT ........................................ 2
ARGUMENT ................................................... 2
THE FOURTH DISTRICT’S OPINION IN THIS CASE IS NOT IN EXPRESS
AND DIRECT CONFLICT WITH CASES CITED BY PETITIONER. ........ 2
CONCLUSION ................................................. 9
CERTIFICATE OF SERVICE .................................... 10
CERTIFICATE OF COMPLIANCE ................................. 11
iii
TABLE OF CITATIONS
CASES PAGE
Cilento v State,
377 So. 2d 663 (Fla. 1979) .......................... 2, 4, 5, 6
Department of Revenue v. Johnston,
442 So. 2d 950 (Fla. 1983) ................................... 3
Dept. of Health and Rehabilitative Services v. Nat'l Adoption
Counseling Service, Inc.498 So.2d 888 (Fla. 1986) ............ 2
Fayerweather v. State,
332 So.2d 21 (Fla.1976) ...................................... 5
Jenkins v. State,
385 So.2d 1356 (Fla. 1980) ................................... 3
Mancini v. State,
312 So. 2d 732 (Fla. 1975)..................................... 3
O’Hara v State,
964 So. 2d 839 (Fla. 2nd DCA 2007) ..................... 2, 4, 7
Reaves v. State,
485 So.2d 829 (Fla. 1986) .................................... 2
State v Gonzalez,
121 So. 3d 625 ...................................... 2, 3, 6, 8
The Florida Bar v. B.J.F.,
530 So. 2d 286 (Fla. 1988) ................................... 2
OTHER AUTHORITIES
Article V, Section 3(b)(3) of the Florida Constitution (1980)..2
§ 893.13(8), Florida Statutes(2012) . . . . . . . . . . ... 6,7
§ 893.135(1), Florida Statutes(2012) . . . . . . . . . . . .8
PRELIMINARY STATEMENT
Respondent, the State of Florida, the Appellant in the
District Court of Appeal (DCA) and the prosecuting authority in
the trial court, will be referenced in this brief as Respondent,
the prosecution, or the State. Petitioner, “Gonzalez,” the
Appellee in the DCA and the defendant in the trial court, will
be referenced in this brief as Petitioner or by proper name.
"PJB" will designate Petitioner's Jurisdictional Brief. That
symbol is followed by the appropriate page number.
A bold typeface will be used to add emphasis. Italics
appeared in original quotations, unless otherwise indicated.
1
2
STATEMENT OF THE CASE AND FACTS
The pertinent history and facts are set out in the District
Court opinion, State v Gonzalez, 121 So. 3d 625,627-630 (Fla. 4th
DCA 2013 and attached as Appendix (A).
SUMMARY OF ARGUMENT
THE FOURTH DISTRICT’S ORDER IN THIS CASE IS NOT IN
EXPRESS AND DIRECT CONFLICT WITH CASES CITED BY
PETITIONER.
The Fourth District’s Opinion in this case does not expressly
or directly conflict with this Court’s holding in Cilento v
State, 377 So. 2d 663 (Fla. 1979) or the Second District’s
holding in O’Hara v State, 964 So. 2d 839 (Fla. 2nd DCA 2007). In
fact, these cases support the District Court decision.
Therefore, this Court has no jurisdiction.
ARGUMENT
This Honorable Court has authority pursuant to Article V,
Section 3(b)(3) of the Florida Constitution (1980) to review a
decision of a district court of appeal that expressly and
directly conflicts with a decision of another district court of
appeal or the Supreme Court on the same question of law. See The
Florida Bar v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988). The
conflict between decisions "must be express and direct" and
"must appear within the four corners of the majority decision."
Reaves v. State, 485 So.2d 829, 830 (Fla. 1986). Accord Dept. of
3
Health and Rehabilitative Services v. Nat'l Adoption Counseling
Service, Inc., 498 So.2d 888, 889 (Fla. 1986)(rejected
"inherent" or "implied" conflict; dismissed petition). Neither
the record, nor a concurring opinion, nor a dissenting opinion
can be used to establish jurisdiction. Reaves; Jenkins v. State,
385 So.2d 1356, 1359 (Fla. 1980)("regardless of whether they are
accompanied by a dissenting or concurring opinion").
This Court in Mancini v. State, 312 So. 2d 732, 733 (Fla.
1975) made it clear that its “jurisdiction to review decisions
of courts of appeal because of alleged conflicts is invoked by
(1) the announcement of a rule of law to produce a different
result in a case which conflicts with a rule previously
announced by this court or another district, or (2) the
application of a rule of law to produce a different result in a
case which involves substantially the same facts as a prior
case. In this second situation, the facts of the case are of
the utmost importance.” [emphasis added]. See also Department of
Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983) (“cases which
are cited for conflict that are distinguishable on their facts
will not vest this Court with jurisdiction”).
Petitioner argues that the District Court’s opinion presents
an express or direct conflict with this Court’s opinion in
Cilento v State, 377 So. 2d 663,666(Fla. 1979) or with the
4
opinion of the Second District Court of Appeals in O’Hara v
State, 964 So. 2d 839 (Fla. 2nd DCA 2007). Respondent argues
that these cases support the District Court’s opinion in this
case. Therefore Petitioner has failed to demonstrate any express
or direct conflict that would entitle him to the conflict
jurisdiction of this Court.
In State of Florida vs. Carlos Gonzalez, 121 So.3d 625 (Fla.
4th DCA 2013), the Fourth District Court of Appeals issued a
written opinion, reversing the trial court’s dismissal of
trafficking and related counts against Petitioner. This Court
held the State had discretion to charge Petitioner, a physician,
with trafficking, and was not required to charge him under the
statute which specifically prohibits illicit conduct by a
prescribing practitioner.
A. Cilento v State, 377 So. 2d 663,666 (Fla. 1979).
Cilento was physician who was charged with sale or delivery
of a controlled substance (Quaaludes) through an unlawful
prescription issued in bad faith. Id. at 664. He appealed the
trial court’s denial of his motion to dismiss, wherein he argued
the trafficking statute did not explicitly cover conduct of a
medical doctor who issues a prescription outside of the course
of his professional practice. Id. at 665-6. He argued at most he
5
should be charged with a misdemeanor. In rejecting this
argument, this Court held:
The information filed against appellant charged that
he “did unlawfully and feloneously sell or deliver
(quaaludes) . . . by means of a prescription issued in
bad faith and not in the course of professional
practice. . . .” Through his plea of nolo contendere,
appellant has conceded that he did in fact so sell or
deliver quaaludes. It appears clear to us that such
conduct constitutes a violation of 891.13(1)(a). The
admitted facts do form an accurate basis for the
charging of this felony. Status as a physician does
not in some way immunize one from charges of selling.
Rather, whether the physician's or other individual's
conduct amounts to selling or merely dispensing is a
function of the particular facts of the case.
Appellant argues that this result is irrational in
that it is susceptible to both felony and misdemeanor
penalties, to be finally determined at the discretion
of the prosecutor. The fact that certain conduct might
violate more than one criminal provision does not
necessarily render it invalid. Fayerweather v. State,
332 So.2d 21 (Fla.1976). Appellant, as a physician, is
capable of violating either or both of the provisions,
893.13(1) and 893.13(2).
Cilento at 666.
Under very similar circumstances, Gonzalez, a physician, was
charged with trafficking by prescriptions for controlled
substances issued outside of his professional practice. The
trial court granted Gonzalez’ motion to dismiss the trafficking
charges, agreeing with his argument that that the state was
required to charge him under the Section 893.13(8) which
specifically addresses when a physician unlawfully issues
prescriptions for controlled substances. Respondent appealed.
6
In rejecting this argument on appeal, the District Court
applied the same reasoning set forth in Cilento:
“Status as a physician does not in some way immunize
one from charges of selling. Rather, whether the
physician’s or other individual’s conduct amounts to
selling or merely dispensing is a function of the
particular facts of the case. . . . The fact that
certain conduct might violate more than one criminal
provision does not necessarily render it invalid.”
Gonzalez at 629-630 citing to Cilento at 666.
Section 893.13(8) was enacted in 2002, several years after
the Cilento opinion was issued in 1979. Petitioner argues the
District Court misapplied this Court’s reasoning in Cilento,
because there was no statute explicitly covering a medical
doctor who issued an illicit prescription. Cilento at 666. The
District Court aptly addressed this language, holding:
“[w]hile Cilento perhaps foreshadowed the
legislature’s later creation of section 893.18(8), the
coincidence of such a temporal relationship does not
mean that the legislature intended to preclude the
state from charging a prescribing practitioner under
section 893.135(1)(c).”
Gonzalez at 630.
Both this Court in Cilento and the District Court held that a
defendant’s conduct, as a physician, may have violated more than
one criminal provision, and that it was within the prosecutor's
discretion to determine under which statute to charge. Cilento
at 666; Gonzalez at 631. Because this is the same reasoning
7
applied by the district court, no conflict exists between these
cases.
B. O’Hara v State, 964 So. 2d 839 (Fla. 2nd DCA 2007).
Petitioner has also failed to demonstrate any express and
direct conflict between the Fourth District court in Gonzalez
and the Second District in O’Hara. The cases presented
completely different issues and are factually distinguishable.
In O’Hara, the issue was whether a defendant, (a layperson),
facing trafficking charges, was entitled to a jury instruction
on the prescription defense. O’Hara’s defense at trial was that
he had been prescribed the drugs by his physician for a chronic
medical condition. Id. at 840. O’Hara did not argue that his
trafficking charges should have been dismissed, the issue argued
by Gonzalez.
The central issue in Gonzalez was whether the prosecutor had
the discretion to charge a prescribing physician, under the
general trafficking statute, in light of Section 893.13(8) which
specifically addresses physicians who prescribe controlled
substances for illicit purposes.
The Gonzalez Court, applied the principles of statutory
construction set forth in O’Hara, holding,
The second district’s reasoning emphasized above
favors the state here. Unlike O’Hara, this case has
nothing to do with the exceptions or defenses in
8
section 893.13, and has everything to do with the
different penalties under sections 893.13(8) and
893.135(1)(c). Thus, just as our sister court
concluded that section 893.135’s introductory phrase
operates to prevent offenders who possessed
trafficking amounts of certain drugs from being
prosecuted for simple possession under section 893.13,
we conclude that section 893.135’s introductory phrase
also operates to allow the state the discretion to
prosecute prescribing practitioners under the second-
or third-degree felony penalties of section 893.13(8)
or the more severe penalties of a first-degree felony
with mandatory minimum sentences and fines under
section 893.135(1)(c).
Gonzalez at 631-2.
Applying these principles of statutory construction, both the
Gonzalez and O’Hara Courts held that the legislative intent of
Chapter 893 was to impose more severe penalties for trafficking
in controlled substances. Both Courts held the intent of the
legislature was to provide prosecutors with the ability to
charge a defendant with a tougher penalty for trafficking
amounts of controlled substances. Therefore, these decisions are
consistent. Petitioner has failed to demonstrate conflict.
9
CONCLUSION
The Respondent maintains that the cases cited by Petitioner
are in accord with the district’s court opinion in this case.
Therefore, Petitioner has failed to demonstrate any direct or
express conflict that would entitled him to this court’s
conflict jurisdiction. This Petition should be denied.
Respectfully submitted and certified,
PAMELA JO BONDI
ATTORNEY GENERAL
/s/ Celia Terenzio
_________________________
CELIA TERENZIO
CHIEF ASSISTANT ATTORNEY GENERAL
Fla. Bar No. 656879
/s/ Laura Fisher
By: LAURA FISHER
ASSISTANT ATTORNEY GENERAL
Fla. Bar No. 0337020
Attorney for Respondent, State of Fla.
Office of the Attorney General
1515 North Flagler Drive
Suite 900
West Palm Beach, FL 33401
Primary E-Mail:
CrimAppWPB@myfloridalegal.com
(561) 837-5000
(561) 837-5108(Fax)
10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate “pdf” copy of the
foregoing Response was provided by electronic mail to
Appellant’s counsel, Richard G. Lubin, at rich@lubinlaw.com and
Steven H. Malone at stevenhmalone@bellsouth.net and filed
electronically in this Court via the EDCA portal on this 20th
day of November, 2013.
/S/ Laura Fisher
11
CERTIFICATE OF COMPLIANCE
I certify that this brief was computer generated using
Courier New 12 point font.
Respectfully submitted and certified,
PAMELA JO BONDI
ATTORNEY GENERAL
/s/ Celia Terenzio
_________________________
CELIA TERENZIO
CHIEF ASSISTANT ATTORNEY GENERAL
Fla. Bar No. 656879
/s/ Laura Fisher
By: LAURA FISHER
ASSISTANT ATTORNEY GENERAL
Fla. Bar No. 0337020
Attorney for Respondent, State of Fla.
Office of the Attorney General
1515 North Flagler Drive
Suite 900
West Palm Beach, FL 33401
Primary E-Mail:
CrimAppWPB@myfloridalegal.com
(561) 837-5000
(561) 837-5108(Fax)
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