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State v. Avella

Florida Court of Appeals, Fifth District

June 21, 2019

STATE OF FLORIDA, Appellant,
v.
ANTHONY JOSEPH AVELLA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

          Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.

          J. Michael Blackstone, of J. Michael Blackstone, P.A., Crystal River, for Appellee.

          PER CURIAM.

         The 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.[1] 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 stage.[2]

         A 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).

         UNLICENSED PRACTICE OF VETERINARY MEDICINE

         Section 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 animal.
"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).

         Avella 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 474:

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, ...

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