       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           ARTURO GODINEZ,
                              Petitioner,

                                     v.

                          STATE OF FLORIDA,
                             Respondent.

                              No. 4D15-4749

                             [April 27, 2016]

   Petition for writ of habeas corpus to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge;
L.T. Case No. 03-12101CF10O.

  Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort
Lauderdale, for petitioner.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L.
Comras, Assistant Attorney General, West Palm Beach, for respondent.

PER CURIAM.

   Arturo Godinez petitions for habeas corpus relief on two alternative
grounds. First, he argues that our affirmance of his racketeering
conviction on direct appeal is inconsistent with our subsequent reversal of
his co-defendant’s conviction. Alternatively, he alleges that appellate
counsel was ineffective for failing to raise the issue upon which his co-
defendant’s conviction was reversed. We grant the petition on the
alternative ground of ineffective assistance of appellate counsel and find
that Godinez is entitled to a new appeal.

   Godinez was charged in a ninety-page indictment, along with seventeen
other defendants, with crimes arising from a large-scale scheme to sell
adulterated prescription drugs to wholesale distributors. Godinez was
charged with racketeering, conspiracy to commit racketeering, and
organized scheme to defraud. To support the racketeering charge, he was
accused of participating in various acts of mail and wire fraud. The
evidence at trial showed that Godinez and several others provided illegally-
obtained prescription drugs to Michael Carlow, who in turn sold the drugs
to distributors to be sold to the general public. The scheme was a “rimless
hub-and-spoke conspiracy”1—the suppliers each worked separately with
Carlow and did not have relationships with each other.

   Godinez was tried with co-defendant Joel de la Osa. Both defendants
moved for judgment of acquittal at the close of the State’s case, arguing
that due to the nature of Carlow’s scheme, they could not be held
criminally liable for the acts of the other suppliers. Thus, the evidence did
not establish that either of them directly participated in at least two of the
predicate acts charged in the indictment, as required by the racketeering
statute. The trial court denied the motions. Godinez was convicted as
charged and sentenced to three concurrent terms of nine years in prison,
to be followed by two years of community control and ten years of
probation.

   On direct appeal, Godinez’s appellate counsel argued that because of
the “rimless hub-and-spoke” nature of the conspiracy, the State failed to
prove the existence of a single unified enterprise. We affirmed per curiam.
Godinez v. State, 138 So. 3d 1039 (Fla. 4th DCA 2014) (table).

   In de la Osa’s appeal, counsel also argued that the State failed to prove
the existence of an enterprise. Counsel further argued that because of the
“rimless hub-and-spoke” nature of the conspiracy, de la Osa was not
vicariously liable for the acts of the other suppliers, the other “spokes”
from Carlow’s “hub.” Thus, without that liability, the State failed to prove
de la Osa’s participation in at least two incidents of racketeering conduct.
We agreed on the second point and reversed de la Osa’s racketeering
conviction. de la Osa v. State, 158 So. 3d 712, 722–28 (Fla. 4th DCA), rev.
denied, 182 So. 3d 631 (Fla. 2015).

   In this petition, Godinez argues that our affirmance in his case is
inconsistent with our subsequent reversal of de la Osa’s racketeering
conviction, and therefore his conviction and sentence should be vacated.
See Brumit v. State, 971 So. 2d 205 (Fla. 4th DCA 2007); Raulerson v.
State, 724 So. 2d 641 (Fla. 4th DCA 1999); Romero v. State, 637 So. 2d 7
(Fla. 4th DCA 1994).

  We find that the two decisions are not inconsistent because Godinez’s
appellate counsel failed to raise the issue upon which we reversed de la

1See Kotteakos v. United States, 328 U.S. 750, 754-55 (1946); United States v.
Seher, 562 F.3d 1344, 1367–68 (11th Cir. 2009); United States v. Chandler, 388
F.3d 796, 807–08 (11th Cir. 2004); see also de la Osa v. State, 158 So. 3d 712,
723–24 (Fla. 4th DCA), rev. denied, 182 So. 3d 631 (Fla. 2015).

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Osa’s racketeering conviction. Godinez’s counsel argued only that the
State failed to prove the first element of racketeering, that Godinez was
associated with an “enterprise.” In de la Osa, we expressly found that the
scheme in this case satisfied the definition of an enterprise. 158 So. 3d at
722–25. Godinez’s counsel did not argue that the State failed to prove the
second element, that Godinez participated in a pattern of racketeering
activity by engaging in at least two incidents of racketeering conduct. See
§§ 895.02(4), 895.03(3), Fla. Stat. (2003) (requiring the State to prove (1)
association with an enterprise; and (2) participation in a pattern of
racketeering activity, defined as engaging in at least two incidents of
racketeering conduct). The State’s failure to establish a pattern of
racketeering activity is the point on which we reversed de la Osa’s
racketeering conviction.

   We therefore grant the petition on the alternative ground of ineffective
assistance of appellate counsel. On the record before us, we cannot
determine whether the State’s evidence at trial was sufficient to establish
a pattern of racketeering activity in Godinez’s case. Thus, a new appeal is
required.

   Accordingly, this opinion shall be filed with the lower tribunal and
treated as the notice of belated appeal of the judgment and sentence
entered December 14, 2011. Upon receipt, the clerk of the lower court
shall certify a copy of this opinion to this court in accordance with Florida
Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a
new case number, which shall be assigned upon receipt in this court of
the certified opinion. All time requirements of the Florida Rules of
Appellate Procedure shall run from the date of this opinion. If petitioner
qualifies for appointed counsel, the trial court shall appoint counsel to
represent him on appeal.

   Petition granted.

WARNER, GROSS and CONNER, JJ., concur.

                            *         *        *

   Not final until disposition of timely filed motion for rehearing.




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