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Simeone v. State

Florida Court of Appeals, Fourth District

June 12, 2019

ROBERT SIMEONE, Petitioner,
v.
STATE OF FLORIDA, Respondent.

         Not final until disposition of timely filed motion for rehearing.

          Petition for writ of mandamus to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Ted S. Booras, Judge; L.T. Case No. 2017CF002660MB.

          Jeremy J. Kroll of Dutko & Kroll, P.A., Fort Lauderdale, for petitioner.

          Ashley B. Moody, Attorney General, Tallahassee, and Jonathan P. Picard, Assistant Attorney General, West Palm Beach, for respondent.

          Gerber, C.J.

         The defendant petitions for a writ of mandamus, or in the alternative a writ of certiorari, to compel his admission into veterans' court. The defendant argues that because he satisfies the criteria for eligibility into veterans' court as stated in section 948.08(7), Florida Statutes (2018), he is entitled to admission into veterans' court. The veterans' court judge rejected the defendant's interpretation of section 948.08(7), and exercised its discretion to deny the defendant's admission into veterans' court.

         As a matter of first impression, based on our interpretation of section 948.08(7)'s plain language, we hold that a defendant who satisfies section 948.08(7)'s criteria is "eligible" for, but not entitled to, admission into veterans' court. Therefore, we deny the defendant's petition. We present this opinion in five parts:

1. The defendant's motion to transfer;
2. The parties' arguments in the circuit court;
3. The veterans' court judge's denial of the transfer;
4. The parties' arguments on this petition; and
5. Our review.

          1. The Defendant's Motion to Transfer

         The state charged the defendant with twenty-six counts of patient brokering, a third-degree felony, for allegedly paying kickbacks to sober home owners who referred residents to the defendant's substance abuse treatment facility. According to the sentencing guidelines, if the defendant is adjudicated guilty on all charges, he faces a minimum of thirty-six months in prison, and if the maximum five-year sentence is imposed on each charge consecutively, he faces a maximum of 130 years in prison.

         The defendant's case initially was assigned to a felony criminal division. However, fifteen months after being charged, the defendant filed a motion to transfer his case to veterans' court pursuant to section 948.08(7), Florida Statutes (2018).

         Section 948.08(7) provides, in pertinent part:

(a) Notwithstanding any provision of this section, a person who is charged with a felony, other than a felony listed in s. 948.06(8)(c), and identified as a veteran, as defined in s. 1.01, including a veteran who is discharged or released under a general discharge, or servicemember, as defined in s. 250.01, who suffers from a military service-related mental illness, traumatic brain injury, substance abuse disorder, or psychological problem, is eligible for voluntary admission into a pretrial veterans' treatment intervention program approved by the chief judge of the circuit, upon motion of either party or the court's own motion, except:
1. If a defendant was previously offered admission to a pretrial veterans' treatment intervention program at any time before trial and the defendant rejected that offer on the record, the court may deny the defendant's admission to such a program.
2. If a defendant previously entered a court-ordered veterans' treatment program, the court may deny the defendant's admission into the pretrial veterans' treatment program.
. . . .
(c) At the end of the pretrial intervention period, the court shall consider the recommendation of the treatment program and the recommendation of the state attorney as to disposition of the pending charges. The court shall determine, by written finding, whether the defendant has successfully completed the pretrial intervention program. If the court finds that the defendant has not successfully completed the pretrial intervention program, the court may order the person to continue in education and treatment, which may include treatment programs offered by licensed service providers or jail-based treatment programs, or order that the charges revert to normal channels for prosecution. The court shall dismiss the charges upon a finding that the defendant has successfully completed the pretrial intervention program.

§ 948.08(7), Fla. Stat. (2018) (emphasis added).

         The defendant's motion and a later memorandum alleged he was eligible for voluntary admission into veterans' court because: he was not charged with a felony listed in section 948.06(8)(c); he is a veteran receiving service-related psychological therapy; he had not been previously offered admission to a pretrial veterans' treatment intervention program; and he had not previously entered a court-ordered veterans' treatment program. The defendant further alleged he had not become aware of the veterans' court program until he filed his motion to transfer.

         2. The Parties' Arguments in the Circuit Court

         The state and the defendant appeared for a hearing before the criminal division judge. The state notified the criminal division judge that the state would agree to having the veterans' court judge determine whether to admit the defendant into veterans' court. However, the state mentioned that the veterans' court judge had "never accepted anybody over the state's objection in ten years." Defense counsel responded, "[M]y review of [section 948.08(7)] seems to suggest that as long as the veteran meets the criteria, he's eligible for the drug court, that it's . . . not subject to the state's review." The criminal division judge agreed to have the veterans' court judge determine whether to admit the defendant into veterans' court.

         Before the parties appeared before the veterans' court judge, the defendant filed a memorandum of law in support of his motion to transfer. The defendant's memorandum argued that as long as he met section 948.08(7)'s eligibility requirements, neither the state's objection nor the state's lack of consent could prevent his admission into veterans' court.

         The state filed a written objection. The state argued section 948.08(7) does not require that an "eligible" defendant be admitted into veterans' court. Instead, the state argued, admission into the Fifteenth Circuit's veterans' court is determined by the terms set forth in the Fifteenth Circuit Administrative Order 4.905-11/10, including the order's incorporated program manual. According to the state, the manual contains the following pertinent provisions:

• "The Judge will form a partnership with the VA, State Attorney, Public Defender, Probation, law enforcement and the treatment team, which allows collaboration in sharing of ...

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