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State v. Latona

Florida Court of Appeal, Fifth District

December 2, 2011

STATE of Florida, Appellant,
Annette LATONA, Appellee.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellee.


The State appeals the trial court's order dismissing the information filed against Annette Latona. Determining that Latona's motion to dismiss was sufficient to support a dismissal as a matter of law and that the State's traverse was insufficient to raise a factual issue, we affirm.

Page 395

The State filed an information charging Latona with one count of possession of oxycodone and two counts of possession of morphine. The arrest affidavit explained that the charges were based on the fact that three prescription pill bottles, with H.H.'s full name on them, were found in Latona's purse by the police after a traffic stop involving Latona. Two of the prescription pill bottles contained morphine and the other, oxycodone. When questioned by police, Latona stated that she was H.H.'s home health care nurse, that she lived at H.H.'s residence, and that she held H.H.'s pills in her purse because she was afraid that he may take too many of them and possibly overdose.

Pursuant to rule 3.190(c)(4) of the Florida Rules of Criminal Procedure, Latona filed a motion to dismiss the information alleging a " prescription defense." Specifically, the motion alleged that Latona was in lawful possession of the oxycodone and morphine found in her purse at the time of her arrest because the medications had been lawfully prescribed to H.H. and she was, by virtue of an executed durable power of attorney, H.H.'s attorney-in-fact. The power of attorney, a copy of which was attached to the motion, expressly authorized Latona, inter alia, to " hold ... all intangible and tangible property ... owned by [H.H.]." It further provided that the instrument was to be construed and interpreted as a general durable power of attorney and that the " enumeration of specific powers herein is not intended to, nor does it, limit or restrict the general powers herein granted to [Latona]."

In response, the State filed a sworn traverse pursuant to rule 3.190(d). In its traverse, the State admitted that the medications found on Latona had been lawfully dispensed to H.H. pursuant to a prescription from a physician. The State further admitted that Latona had been designated by H.H. as his attorney-in-fact and that the executed power of attorney was in full force and effect at the time of Latona's arrest. However, the State disputed that Latona was holding the prescribed medications on behalf of H.H. based on the following:

[Officer] Mechtel states that he interviewed [H.H.], and [H.H.] denied that any person should have possession of his medications.

Significantly, there was no language in the traverse reflecting that H.H. had ever informed Latona that, notwithstanding the language contained in the executed power of attorney, she was not authorized to possess his medications. Furthermore, there was no allegation by the State that Latona had either used or attempted to sell H.H.'s medications.

Section 893.13(6)(a), Florida Statutes (2009) permits an individual to legally possess a controlled substance where the controlled substance was obtained pursuant to a valid prescription. See O'Hara v. State, 964 So.2d 839, 841 (Fla. 2d DCA 2007). The prescription defense is available to the prescription holder and any individual authorized by the prescription holder to hold the medications on his or her behalf. McCoy v. State, 56 So.3d 37, 39 (Fla. 1st DCA 2010).

In the instant case, the State argues there is a disputed issue of fact as to whether Latona exceeded the scope of her authority granted by the power of attorney. We disagree. Pursuant to the express provisions of the power of attorney, Latona was authorized to hold any and all of H.H.'s property— which would include his medications. While H.H. could revoke any or all of the powers he granted to Latona, any such revocation would only be effective as of the time that Latona received notice of the revocation.

Page 396

Florida-Georgia Chem. Co. v. Nat'l Labs., Inc., 153 So.2d 752, 754 (Fla. 1st DCA 1963) (revocation of agency becomes operative as to agent from time agent has actual notice thereof). Here, there was nothing in the record reflecting that H.H. had ever informed Latona that she was no longer authorized to hold his medications. Absent such assertion, H.H.'s alleged statement to Officer Mechtel denying that any person should have possession of his medications constituted an incorrect ...

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