        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           STATE OF FLORIDA,
                               Petitioner,

                                      v.

                          MARCIA LYNNE SILLS,
                              Respondent.

                              No. 4D19-1585

                           [September 18, 2019]

   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


1  The above-referenced phrase is now contained in section 893.05(1)(a), Florida
Statutes (2019).

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(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 circuit court categorically excluded the
expert’s testimony in its entirety, a remedy which should be invoked as a
last resort.

   The defendant responds that the circuit court correctly excluded the
state expert’s testimony, primarily because the expert’s testimony applied
generally to the “medical practices of the clinic” at which the defendant
worked, but was not specific as to the defendant. The defendant also
responds the circuit court correctly found that the state expert’s testimony
would confuse and mislead the jury.

                                Our Review

   We agree with the state’s arguments. An exception to the prohibitions
found in the Florida Comprehensive Drug Abuse Prevention and Control
Act, section 893.01, Florida Statutes (2012), et seq., is found in section
893.05(1), Florida Statutes (2012), which provides, in pertinent part: “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). See Rodenberg v.
State, 198 So. 3d 930, 933 (Fla. 4th DCA 2016) (“Generally, ‘good faith’
and ‘in the course of professional practice’ are affirmative defenses, not
elements of the offenses, because section 893.05(1) is separate from the
delivery and trafficking statutes.”); King v. State, 336 So. 2d 1200, 1202
(Fla. 2d DCA 1976) (“It is clear that s. 893.05 is an exception to the
prohibitions of s. 893.13 and does not constitute a separate violation of
Chapter 893.”).

   Although “[a] defense or an exception to an offense need not be
negatived in the information charging the offense,” King, 336 So. 2d at
1202, it remains reasonable for the state to seek to negate a section
893.05(1) defense or exception when prosecuting a practitioner for a
violation of section 893.13. See Rodenberg, 198 So. 3d at 933-34 (no
fundamental error where the state’s information alleged, and the trial


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court instructed the jury, that the defendant wrote the prescription “not
in good faith or not in the course of Defendant’s professional practice”).

   We would expect that, in many cases, expert testimony would assist a
jury in determining whether a defendant’s prescription of controlled
substances was “in good faith and in the course of professional practice,”
in comparison to the prevailing professional standard of care. As section
90.702, Florida Statutes (2018), provides:

      If scientific, technical, or other specialized knowledge will
      assist the trier of fact in understanding the evidence or in
      determining a fact in issue, a witness qualified as an expert
      by knowledge, skill, experience, training, or education may
      testify about it in the form of an opinion or otherwise, if:
      (1) The testimony is based upon sufficient facts or data;
      (2) The testimony is the product of reliable principles and
      methods; and
      (3) The witness has applied the principles and methods
      reliably to the facts of the case.

    Here, the state expert’s testimony appears to be intended for the very
purpose which section 90.702’s plain language conveys – to “assist the
trier of fact in understanding the evidence or in determining a fact in issue”
– that the defendant did not prescribe the controlled substances “in good
faith and in the course of professional practice” as a section 893.05(1)
exception or defense would allow.

   The circuit court’s order prevents the state from presenting expert
testimony on this issue, effectively negating or significantly impairing the
state’s ability to prosecute or present the case. Thus, the circuit court’s
order departs from the essential requirements of law, the prejudice from
which would be irreparable if the defendant is acquitted. As the Fifth
District stated when granting a petition for certiorari in State v. Gerry, 855
So. 2d 157 (Fla. 5th DCA 2003):

      The right to call witnesses is one of the most important due
      process rights of a party and accordingly, the exclusion of the
      testimony of expert witnesses must be carefully considered
      and sparingly done. This right applies to both the state and
      the defendant because each is entitled to a fair trial. Hence,
      the courts have carefully guarded the state’s right to present
      relevant evidence and testimony through certiorari review of
      pretrial orders that attempt to exclude such evidence in trial
      proceedings.

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Id. at 161 (internal citation and quotation marks omitted).

   Based on the foregoing, we grant the state’s petition and quash the
circuit court’s order granting the defendant’s motion to exclude expert
testimony. We remand for the circuit court to enter an order denying the
defendant’s motion.     However, this opinion does not preclude the
defendant from objecting to any portion of the state expert’s testimony
based on any other recognized objection under the evidence rules.

   Petition granted.

MAY and CONNER, JJ., concur.

                           *        *         *

   Not final until disposition of timely filed motion for rehearing.




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