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.
Moody, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for petitioner.
J. Kulik and Ashley D. Kay, Fort Lauderdale, for respondent.
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.
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
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.
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
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). 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
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."
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
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 ...