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State v. Sills

Florida Court of Appeals, Fourth District

September 18, 2019

STATE OF FLORIDA, Petitioner,
v.
MARCIA LYNNE SILLS, Respondent.

         Not final until disposition of timely filed motion for rehearing.

          Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ernest A. Kollra, Judge; L.T. Case No. 12-12110 CF10A.

          Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for petitioner.

          Kevin J. Kulik and Ashley D. Kay, Fort Lauderdale, for respondent.

          GERBER, J.

         The state petitions for a writ of certiorari, seeking to quash the circuit court's order granting the defendant's motion to preclude the state from presenting a physician to provide expert opinion testimony that the defendant, a medical doctor, did not prescribe controlled substances in good faith and in the course of professional practice. The state argues that the order departs from the essential requirements of the law and causes irreparable harm as the state would have no right of appeal if the defendant is acquitted. We agree with the state and grant the petition.

         Procedural History

         The state charged the defendant with racketeering and conspiracy to commit racketeering in violation of sections 895.03(3) and (4), Florida Statutes (2012), and trafficking in oxycodone and conspiracy to traffic in oxycodone in violation of sections 893.135(1)(c)1.a., b. and (5), Florida Statutes (2012).

          The state retained a physician to provide expert opinion testimony on the impropriety of the defendant's actions as described in the probable cause affidavit, after having reviewed police reports, conversations between the defendant an undercover officer posing as a patient, and patient charts seized during a search of the defendant's office.

         The defendant filed a motion to exclude the expert's testimony pursuant to section 90.403, Florida Statutes (2017), which states, in pertinent part: "Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." The defendant argued that the expert's opinion was "not that the Defendant violated any criminal law, but rather, that the care she provided her patients was below medical standards." According to the defendant, hearing this opinion could confuse or mislead the jury and unfairly prejudice her because "the jury may falsely equate providing substandard care with committing a criminal offense."

         The state filed a response arguing the expert would testify on the central issue at trial, namely whether the defendant's actions were "in good faith and in the course of his or her professional practice," as that phrase is used in section 893.05(1), Florida Statutes (2012) ("A practitioner, in good faith and in the course of his or her professional practice only, may prescribe, administer, dispense, mix, or otherwise prepare a controlled substance . . . .") (emphasis added).[1] According to the state, an ordinary lay juror would not be qualified to decide what constitutes a delivery or sale "in good faith and in the course of his or her professional practice" without the benefit of specialized knowledge of pain management medicine.

         After a hearing, the circuit court entered an order granting the defendant's motion to exclude the state expert's testimony. The circuit court reasoned that the testimony "would confuse and mislead the jury."

         This petition followed. The state correctly cites its burden as having to show that the circuit court's order departs from the essential requirements of law by effectively negating or significantly impairing the state's ability to prosecute or present the case, resulting in irreparable harm because if the defendant is acquitted, the principles of double jeopardy prevent the state from seeking review. See generally State v. Pettis, 520 So.2d 250, 252-53 (Fla. 1988) (discussing a district court's ability to consider state petitions for certiorari to review pretrial orders).

         The state argues that the circuit court's order departs from the essential requirements of the law because the order prevents the state from negating a defense that the defendant prescribed the controlled substances "in good faith and in the course of his or her professional practice." The state also argues that the circuit court did not consider whether reasonable alternatives existed to overcome or mitigate any potential confusion to the jury. Instead, the state argues, the ...


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