FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Citrus County, Richard A. Howard,
Moody, Attorney General, Tallahassee, and Kristen L.
Davenport, Assistant Attorney General, Daytona Beach, for
Michael Blackstone, of J. Michael Blackstone, P.A., Crystal
River, for Appellee.
State of Florida appeals the trial court's order
dismissing charges brought against Anthony Joseph Avella for
practicing veterinary medicine without a license and for
cruelty to animals. The charges arose out of Avella's use
of a homemade device in an attempt to treat a problem that
his miniature dachshund, Thor, was having. Avella asserts
that he attempted the treatment himself because he could not
afford veterinary treatment. After Avella's
home-treatment injured the dog, he took Thor to a local
veterinarian for professional treatment. The veterinarian
insisted that the dog, who allegedly was in pain and may have
had internal injuries, needed to go to an advanced care
veterinary facility to treat the original condition and the
home-treatment caused injury; however, Avella did not do so
based on claimed lack of funds. We affirm dismissal of the charge
that he was practicing veterinary medicine without a license,
but reverse and remand so that the prosecution for the
cruelty to animals charge may proceed beyond the pleadings
motion to dismiss should be granted "[o]nly where the
most favorable construction to the State would still not
establish a prima facie case of guilt." State v.
Taylor, 16 So.3d 997, 999 (Fla. 5th DCA 2009).
"[E]ven if the trial court doubts the sufficiency of the
State's evidence, it may not grant a motion to dismiss
criminal charges simply because it concludes that the case
will not survive a motion for judgment of acquittal."
Id. at 1002. A trial court's ruling on a motion
to dismiss is reviewed by this court de novo. State v.
N.F., 924 So.2d 912, 913 (Fla. 5th DCA 2006).
PRACTICE OF VETERINARY MEDICINE
474.213(1)(i), Florida Statutes (2018), forbids a person from
practicing veterinary medicine without a license; Avella is
not a veterinarian and is certainly not licensed in Florida
for that profession. The State relies upon a related
statutory provision for its argument that Avella was
practicing veterinary medicine without a license. Section
474.202 defines "practice of veterinary medicine"
and "veterinary medicine" as follows:
"Practice of veterinary medicine" means diagnosing
the medical condition of animals and prescribing, dispensing,
or administering drugs, medicine, appliances, applications,
or treatment of whatever nature for the prevention, cure, or
relief of a wound, fracture, bodily injury, or disease
thereof; performing any manual procedure for the diagnosis of
or treatment for pregnancy or fertility or infertility of
animals; or representing oneself by the use of titles or
words, or undertaking, offering, or holding oneself out, as
performing any of these functions. The term includes the
determination of the health, fitness, or soundness of an
"Veterinary medicine" includes, with respect to
animals, surgery, acupuncture, obstetrics, dentistry,
physical therapy, radiology, theriogenology, and other
branches or specialties of veterinary medicine.
§ 474.202(9), (13), Fla. Stat. (2018).
relies instead upon the statutory exemptions found in section
474.203(5)(a), which permit a person to care for her or his
own animals, as he claims that he was just trying to help
Thor. The pertinent part of that section exempts the
following class of people from the regulations of chapter
Any person, or the person's regular employee,
administering to the ills or injuries of her or his own
animals, including, but not limited to, castration, spaying,