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)