FRANK J. MADERI, KENDEY UNDERWOOD, JOSEPH v. PIOTROWSKI AND CARLOS E. GUZMAN-ROIG v. STATE OF FLORIDA ( 2020 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANK J. MADERI, KENDEY )
UNDERWOOD, JOSEPH V. )
PIOTROWSKI and CARLOS E. )
GUZMAN-ROIG, )
)
Petitioners, )
)
v. ) Case No. 2D20-413
)
STATE OF FLORIDA, )
)
Respondent. )
)
Opinion filed September 30, 2020.
Petition for Writ of Certiorari to the Circuit
Court for Pinellas County; Dee Anna
Farnell, Judge.
Marc F. Plotnick of Plotnick Law, P.A.,
St. Petersburg, for Petitioner Frank J.
Maderi.
Douglas J. Greenberg, St. Petersburg, for
Petitioner Kendey Underwood.
Bruce H. Denson, St. Petersburg,
for Petitioner Joseph V. Piotrowski.
Michael Braxton of Parks & Braxton, P.A.,
Miami, for Petitioner Carlos E. Guzman-
Roig.
Ashley Moody, Attorney General,
Tallahassee, and Cynthia Richards,
Assistant Attorney General, Tampa, for
Respondent.
MORRIS, Judge.
The petitioners, four military veterans charged with misdemeanor driving
under the influence (DUI), seek certiorari review of trial court orders denying their
motions to be accepted into the pretrial veterans' treatment intervention program in
Pinellas County in compliance with section 948.16(2), Florida Statutes (2019).1 The trial
court denied their motions on the basis that the "circuit has not created a misdemeanor
pretrial veterans' intervention program as referenced in section 948.16(2)." The
petitioners seek certiorari review in this court, arguing that a 2019 administrative order
established such a program in the Sixth Judicial Circuit and that the petitioners are
entitled to participate in the program.
The petitioners each moved for acceptance into the pretrial veterans'
treatment intervention program under section 948.16(2), which provides as follows:
(2)(a) A veteran, as defined in s. 1.01, including a
veteran who is discharged or released under a general
discharge, or servicemember, as defined in s. 250.01, who
suffers from a military service-related mental illness,
traumatic brain injury, substance abuse disorder, or
psychological problem, and who is charged with a
misdemeanor is eligible for voluntary admission into a
misdemeanor pretrial veterans' treatment intervention
program approved by the chief judge of the circuit, for a
period based on the program's requirements and the
treatment plan for the offender, upon motion of either party
or the court's own motion. However, the court may deny the
defendant admission into a misdemeanor pretrial veterans'
treatment intervention program if the defendant has
1After the circuit court entered the orders, it granted the petitioners' motion
to consolidate the four cases for the purpose of filing a petition for writ of certiorari in this
court.
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previously entered a court-ordered veterans' treatment
program.
(b) While enrolled in a pretrial intervention program
authorized by this section, the participant shall be subject to
a coordinated strategy developed by a veterans' treatment
intervention team. The coordinated strategy should be
modeled after the therapeutic jurisprudence principles and
key components in s. 397.334(4), with treatment specific to
the needs of veterans and servicemembers. The
coordinated strategy may include a protocol of sanctions that
may be imposed upon the participant for noncompliance with
program rules. The protocol of sanctions may include, but
need not be limited to, placement in a treatment program
offered by a licensed service provider or in a jail-based
treatment program or serving a period of incarceration within
the time limits established for contempt of court. The
coordinated strategy must be provided in writing to the
participant before the participant agrees to enter into a
misdemeanor pretrial veterans' treatment intervention
program or other pretrial intervention program. Any person
whose charges are dismissed after successful completion of
the misdemeanor pretrial veterans' treatment intervention
program, if otherwise eligible, may have his or her arrest
record of the dismissed charges expunged under s.
943.0585.2
(Emphasis added.) At a consolidated hearing held on October 28, 2019, the petitioners
acknowledged that their cases had been transferred to "veterans' court," which the
petitioners argued includes the veterans' treatment intervention program. But
petitioners argued that they should not be required to enter a plea to the charges before
participating in the program. The petitioners argued that the statutory language
provides that if the petitioners successfully complete the program, the trial court is
required to dismiss the charges.
2Section948.08(7) contains a similar provision for veterans charged with a
felony. Both provisions were enacted in 2012. Ch. 2012-159, §§ 18, 19, Laws of Fla.
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The parties and the court discussed the recent of case of Simeone v.
State, 276 So. 3d 797 (Fla. 4th DCA), review denied, No. SC19-1430, 2019 WL
6249335 (Fla. Nov. 22, 2019), and the petitioners agreed that under that case, the trial
court has discretion to allow a veteran admission into the veterans' treatment
intervention program. But the petitioners argued that consent by the State is not
required. The State, on the other hand, argued that the Sixth Circuit had not created a
misdemeanor pretrial veterans' treatment intervention program. The State argued that
the "veterans' treatment court" that exists in the Sixth Circuit is not the same as a
misdemeanor pretrial veterans' treatment intervention program set forth in section
948.16.3 The State argued that the only pretrial intervention program is the one run by
3Itappears that the Sixth Judicial Circuit's veterans' court was created in
2012 or 2013 after the legislature passed section 394.47891, a general statute that
provided as follows:
The chief judge of each judicial circuit may establish a
Military Veterans and Servicemembers Court Program under
which veterans, as defined in s. 1.01, and servicemembers,
as defined in s. 250.01, who are convicted of a criminal
offense and who suffer from a military-related mental illness,
traumatic brain injury, substance abuse disorder, or
psychological problem can be sentenced in accordance with
chapter 921 in a manner that appropriately addresses the
severity of the mental illness, traumatic brain injury,
substance abuse disorder, or psychological problem through
services tailored to the individual needs of the participant.
Entry into any Military Veterans and Servicemembers Court
Program must be based upon the sentencing court's
assessment of the defendant's criminal history, military
service, substance abuse treatment needs, mental health
treatment needs, amenability to the services of the program,
the recommendation of the state attorney and the victim, if
any, and the defendant's agreement to enter the program.
§ 394.47891, Fla. Stat. (2012). Sections 948.08(7) and 948.16(2) were also added in
2012, but based on the State's arguments and the trial court's comments at the hearing,
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the State, which does not allow DUIs. The petitioners responded by arguing that
Administrative Order 2019-059, which was signed by Chief Judge Anthony Rondolino
on September 24, 2019, created a veterans' treatment intervention program in the Sixth
Circuit. At the conclusion of the hearing, the trial court indicated that it was persuaded
by the State's argument and was inclined to find that no veterans' treatment intervention
program existed in the Sixth Circuit. However, the trial court took the issue under
advisement. On January 6, 2020, the trial court denied the petitioners' motions by
separate written orders containing the following language:
In his present motion, the Defendant requests that
this Court permit him entry into misdemeanor pretrial
veterans' treatment intervention program. However, this
circuit has not created a misdemeanor pretrial veterans'
treatment intervention program referenced in section
946.16(2), Florida Statutes. Therefore, the Court is unable
to grant the Defendant's motion; it must be denied.
In their instant petition for writ of certiorari, the petitioners argue that
Administrative Order (AO) No. 2019-059 for the Sixth Judicial Circuit created a veterans'
treatment intervention program as contemplated by section 948.16(2)(a). "To obtain
certiorari relief, a petitioner must demonstrate that the order departs from the essential
requirements of law, that it causes material injury, and that the petitioner lacks an
adequate remedy on appeal." Gincley v. State, 267 So. 3d 444, 446 (Fla. 4th DCA
2019) (quoting Dees v. Kidney Grp., LLC, 16 So. 3d 277, 279 (Fla. 2d DCA 2009)).
"Preclusion from receiving the benefit of a pretrial intervention program causes
it appears that no veterans' treatment intervention program was implemented as part of
the Sixth Circuit's veterans' court between the time that the general statute was enacted
in 2012 and the date that the administrative order at issue here was entered in 2019.
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irreparable harm." Id. (citing Hewlett v. State, 661 So. 2d 112, 116 (Fla. 4th DCA
1995)). The petitioners have satisfied the harm prong because if the trial court
incorrectly ruled that there is no veterans' treatment intervention program, there would
be no way for the petitioners to remedy the harm other than by filing this petition.
Both parties refer to Simeone, the only case that discusses a veterans'
treatment intervention program, but it is not directly on point. In Simeone, a defendant
charged with felonies sought to be admitted into a veterans' treatment intervention
program but his admission was denied by the trial court based on the nature of his
charges. 276 So. 3d at 799. The defendant filed a petition for writ of mandamus,
arguing that because he satisfied the criteria under section 948.08(7), he was entitled to
admission in a veterans' treatment intervention program. 276 So. 3d at 802. It should
be noted that the court in Simeone used the term veterans' court and veterans'
treatment intervention program interchangeably. Id.
The Fourth District held that mandamus was not the proper remedy
because "a defendant who satisfies section 948.08(7)'s criteria is merely 'eligible' for,
but not entitled to, admission into veterans' court, and that a judge's decision on
whether to admit an eligible and willing defendant into veterans' court is a discretionary
act, not a ministerial duty." 276 So. 3d at 803. The court treated the petition as a
petition for writ of certiorari but denied the petition because the statute does not require
the trial court to admit an eligible veteran into the program. Rather, the trial court has
discretion on whether to admit an eligible veteran. The court held that the trial court had
not deferred or abdicated its discretion in denying admittance to the defendant based on
the nature of the defendant's charges. Id. at 805-06.
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This case is distinguishable from Simeone. There, the trial court denied
admission into the program after exercising its discretion. Here, the trial court did not
exercise its discretion by denying the petitioners' admission into the program. Rather,
the trial court denied admission into the program after making a finding that the program
does not exist in the Sixth Circuit, and it is that decision that this court must review.
The language of AO 2019-059 indicates that a veterans' treatment
intervention program was created in the Sixth Circuit as contemplated by sections
948.08 and 948.16. The first paragraph of the order states in relevant part:
The Florida Legislature has appropriated non-
recurring general revenue funds to the Sixth Judicial Circuit
for the purpose of creating pretrial felony or misdemeanor
veterans' treatment intervention programs in accordance
with sections 948.08 and 948.16, Florida Statutes. Ch.
2013-40, Line Item 3203. . . . In 2019, the Florida
Legislature expanded those eligible for Veteran Treatment
Court in section 394.47891, Florida Statutes.
(Emphasis added.) Ch. 2013-40, Laws of Florida, line item 3203 provides $600,000 in
nonrecurring general revenue funds to Pasco and Pinellas counties "to create, pursuant
to ss. 948.08(7)(a) and 948.16(2)(a), F.S., felony and/or misdemeanor pretrial veterans'
treatment intervention programs."
Further, the eligibility criteria referenced in and attached to AO 2019-059
lists certain eligibility criteria if "funds appropriated in Ch. 2019-115, Line Item 3247 . . .
are used to fund the veterans' treatment intervention program." Chapter 2019-115,
Laws of Florida, line item 3247 provides for Pasco and Pinellas County to each receive
$150,000 "for felony and/or misdemeanor pretrial or post-adjudicatory veterans'
treatment intervention program." And the eligibility criteria attached to the order tracks
the language of sections 948.16(2)(a) and 948.08(7)(a).
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Accordingly, it is clear that "a pretrial veterans' treatment intervention
program [was] approved by the chief judge of the circuit" in the Sixth Judicial Circuit by
AO 2019-059, as provided for in sections 948.08(7)(a) and 948.16(2)(a). It is irrelevant
that the AO used the term veterans' treatment court instead of veterans' treatment
intervention program where it is clear that the order was intending to implement the
veterans' treatment intervention program provided for in the statutes and funded by the
legislature. See Simeone, 276 So. 3d 797 (referring to veterans' court and veterans'
treatment intervention program interchangeably). Once the veterans' treatment
intervention program was established by the chief judge in AO 2019-059, the petitioners
were entitled to a determination by the trial court of whether they should be admitted
into the program. The petitioners are charged with misdemeanors, and section
948.16(2)(a) provides that a veteran meeting the criteria "and who is charged with a
misdemeanor is eligible for voluntary admission" into the program.4 The trial court
departed from the essential requirements of section 948.16(2) by denying petitioners'
admission into the veterans' treatment intervention program on the basis that no such
program exists when the chief judge established the program in AO 2019-059.
Petition granted; order quashed.
KELLY and SMITH, JJ., Concur.
4The State argues that the petitioners have not established that they are
eligible for the program, if one exists. However, when one of the petitioners' counsel
asked to establish a record regarding the petitioners' eligibility for the program, the trial
court stopped him and said that the petitioners met the criteria.
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