State v. Rodriguez

71 So. 3d 154, 2011 Fla. App. LEXIS 14534, 2011 WL 4056138
CourtDistrict Court of Appeal of Florida
DecidedSeptember 14, 2011
DocketNos. 3D10-946, 3D10-535
StatusPublished
Cited by1 cases

This text of 71 So. 3d 154 (State v. Rodriguez) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rodriguez, 71 So. 3d 154, 2011 Fla. App. LEXIS 14534, 2011 WL 4056138 (Fla. Ct. App. 2011).

Opinion

ROTHENBERG, J.

The defendant, Abel Rodriguez, was tried and convicted for committing the following offenses: two counts of dispensing drugs without a pharmacist’s license charged in counts six and fourteen of the information, and two counts of adulteration or misbranding of drugs charged in counts nine and seventeen. Following the jury’s verdict, the trial court granted the defendant’s motion for judgment of acquittal notwithstanding the verdict as to counts nine and seventeen, adulteration or mis-branding of drugs. The State appeals the order granting judgment of acquittal as to adulteration or misbranding of drugs (counts nine and seventeen), and the defendant cross appeals the judgment of guilt as to the two remaining counts, dis[156]*156pensing drugs without a pharmacist’s license (counts six and fourteen). The appeals were consolidated and both appeals are based on the sufficiency of the evidence presented. Because the record reflects that there was more than ample evidence to support the jury’s verdict as to all four counts, we reverse the trial court’s order granting a judgment of acquittal as to counts nine and seventeen, and we affirm the judgment of guilt as to counts six and fourteen.

STANDARDS OF REVIEW

In moving for a judgment of acquittal, the defendant admits all facts and evidence adduced at trial, and all reasonable inferences that may be drawn from the evidence must be viewed in the light most favorable to the State. Beasley v. State, 774 So.2d 649, 657 (Fla.2000), When a defendant moves for a judgment of acquittal on the basis of the sufficiency of the evidence, as the defendant did here, he admits not only the facts established by the evidence, but also every conclusion favorable to the State that a jury might fairly and reasonably infer from the evidence. Boyce v. State, 638 So.2d 98, 99 (Fla. 4th DCA 1994).

We review the trial court’s order granting the defendant’s motion for judgment of acquittal as to counts nine and seventeen de novo, see Troy v. State, 948 So.2d 635, 645-46 (Fla.2006); Pagan v. State, 830 So.2d 792, 803 (Fla.2002), and our review is based on the sufficiency of the evidence. Because the defendant’s appeal as to the judgments of guilt entered as to counts six and fourteen are also based on the sufficiency of the evidence, our review in these consolidated appeals is whether there was sufficient evidence to sustain the jury’s verdicts. Unless there is no view of the evidence upon which the jury could find the defendant guilty that can be sustained under the law, the convictions should stand. Williams v. State, 967 So.2d 735, 755 (Fla.2007).

THE CHARGES

A. Counts Nine and Seventeen — Adulteration or Misbranding of Drugs

Counts nine and seventeen charged that the defendant, along with several co-defendants; “did unlawfully and knowingly adulterate a drug intended for distribution and/or did unlawfully and knowingly repackage, sell, deliver, or hold or offer for sale any drug that was misbranded or adulterated, in violation of Florida Statutes 499.0691(3)(b), 499.0691(3)(a), and 777.011.” Count nine pertains to the “Nuria’s operation,” and count seventeen pertains to the “Santa Clara operation.”

Section 499.0691(3), Florida Statutes (2003), provides1 in pertinent part, as follows:

(3) Any person who violates any of the following provisions commits a felony of the second degree....
(a) Knowingly manufacturing, repackaging, selling, delivering, or holding or offering for sale any drug that is adulterated or mis-branded or has otherwise been rendered unfit for human or animal use.
(b) Knowingly adulterating a drug that is intended for further distribution.

Section 499.003(37), Florida Statutes (2003)2, defines “repackage” as including [157]*157“repacking or otherwise changing the container, wrapper, or labeling to further the distribution of the drug....”

(emphasis added).

Section 499.006, Florida Statutes (2003), provides, in relevant part, as follows:

A drug or device is adulterated:
[[Image here]]
(2) If it has been produced, prepared, packed, or held under conditions whereby it could have been contaminated with filth or rendered injurious to health;
(3) If it is a drug and the methods used in, or the facilities or controls used for, its manufacture, processing, packing, or holding do not conform to, or are not operated or administered in conformity with, current good manufacturing practices to assure that the drug meets the requirements of ss. 499.001-499.081....
[[Image here]]
(10) If it is a legend [i.e., prescription] drug ... that has been purchased, held, sold, or distributed at any time by a person not authorized under federal or state law to do so.

(Emphasis added). Further, a drug is “misbranded” “[i]f its labeling is in any way false or misleading.” § 499.007(1), Fla. Stat. (2003).

B. Counts Six and Fourteen — Dispensing Drugs Without a Pharmacist’s License

Counts six and fourteen charged that the defendant, along with several co-defendants:

did unlawfully fill, compound, or dispense prescriptions or dispense medicinal drugs and at such time did not hold an active license as a pharmacist, was not registered as an intern, or was not an intern acting under the direct and immediate personal supervision of a licensed pharmacist in the State of Florida, in violation of Florida Statutes 465.015(2)(b), 465.015(4) and 777.011.

The language used to charge the defendant in these two counts tracks the language of section 465.015(2)(b), Florida Statutes (2003), and therefore will not be repeated here. Section 465.015(4), Florida Statutes (2003), provides that a violation of the above constitutes a third degree felony.

Section 777.011, Florida Statutes (2003), which is charged in all four counts, is the “principal” statute, which provides:

Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.

THE EVIDENCE

The evidence presented is as follows. The defendant, who had been in the pharmaceutical business for thirty-five years, first in New Jersey and then in Miami beginning in the late 1990’s, decided to expand his operation by getting involved in the internet pharmacy business. At the beginning, he began “capturing” applications for pharmaceuticals; a doctor would sign off on the applications; the prescriptions would be filled at one of the defendant’s pharmacies, usually at Nuria’s La Familia Pharmacy (“Nuria’s”), located on 22nd Avenue and N.W. 11th Street in Mia[158]*158mi; the prescriptions would be shipped to the customers; and the defendant would get a “service fee” for filling the prescriptions.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

J.D. v. State
246 So. 3d 569 (District Court of Appeal of Florida, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
71 So. 3d 154, 2011 Fla. App. LEXIS 14534, 2011 WL 4056138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rodriguez-fladistctapp-2011.