ACE WEINTRAUB v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL FOR THE STATE OF FLORIDA
FOURTH DISTRICT
ACE WEINTRAUB,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-991
[November 3, 2021]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Joseph Marx, Judge;
L.T. Case Nos. 50-2009-CF-014637-AXXX-MB, 50-2009-CF-014738-
AXXX-MB, 50-2009-CF-002852-AXXX-MB.
Michael Salnick of Law Offices of Salnick & Fuchs, PA, West Palm
Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Ace Weintraub appeals the summary denial of a rule 3.850 motion
seeking to withdraw a plea. He asserts that the trial court failed to
adequately address three claims of ineffective assistance of counsel and
requests an evidentiary hearing. We affirm without discussion the trial
court’s summary denial of claims two and three. However, as discussed
below, we reverse and remand for further proceedings with respect to claim
one.
Background
In exchange for an opportunity to provide substantial assistance and
potentially avoid a 25-year mandatory minimum sentence, Weintraub
entered a guilty plea to felony drug charges in three cases. He
subsequently moved to withdraw his plea as involuntary, pursuant to rule
3.170(l). This motion was denied, and the trial court’s order was affirmed
by this court on appeal. Weintraub v. State, 242 So. 3d 1119 (Fla. 4th DCA
2018) (table decision).
One year later, Weintraub timely filed a rule 3.850 motion raising three
claims of ineffective assistance of counsel. Weintraub alleged that his
attorney was ineffective for: (1) misadvising him about a prescription
defense to trafficking in oxycodone; (2) failing to pursue an entrapment
defense; and (3) failing to file a motion to dismiss based upon the
prescription defense. Weintraub further alleged that, if properly advised,
he would not have entered the plea and would have proceeded to trial.
The record does not refute Weintraub’s initial rule 3.850 claim—that
he had a valid prescription and was not advised by counsel about the
availability of a prescription defense. The State has not alleged or
demonstrated that Weintraub did not have a valid prescription or that he
obtained the oxycodone illegally. Cf. State v. Paez, 201 So. 3d 804, 805–
06 (Fla. 4th DCA 2016) (reversing an order granting a motion to dismiss
where the defendant admitted that she bought the controlled substance
illegally and knew she should not have had the pills without a proper
prescription); Day v. State, 119 So. 3d 485, 488–91 (Fla. 1st DCA 2013)
(concluding the failure to instruct the jury on a prescription defense was
not fundamental error because defendant admitted at the time of arrest
and in a later interview that he purchased the pills illegally).
Further, Weintraub was not charged with trafficking based upon sale
or delivery of a trafficking amount. The charge was based upon possession
of a trafficking amount. “A valid prescription is a complete defense to
trafficking . . . .” Wagner v. State, 88 So. 3d 250, 252 (Fla. 4th DCA 2012).
Whether Weintraub previously sold some pills from his prescription or
intended to sell them does not overcome a prescription defense to
trafficking. See id. at 253 (“We further hold that [defendant’s] subsequent
decision to sell the contents of his prescription did not affect the validity
of the prescription.”); Celeste v. State, 79 So. 3d 898, 900 (Fla. 5th DCA
2012) (concluding that judgment of acquittal should have been granted
because evidence that defendant intended to sell his prescribed oxycodone
was insufficient to defeat his prescription defense); Glovacz v. State, 60 So.
3d 423, 425–26 (Fla. 1st DCA 2011) (holding it was fundamental error to
not give a prescription defense jury instruction on a trafficking charge
notwithstanding defendant’s acknowledgment that she gave some of her
pills to an undercover officer).
Finally, contrary to the State’s argument, Weintraub’s allegation that
he would not have entered the plea if properly advised is not inherently
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incredible. Trafficking was the most serious charge he faced and the only
one carrying a 25-year mandatory minimum sentence.
Conclusion
Because Weintraub has stated a facially sufficient rule 3.850 claim that
is not refuted by the record, we reverse the summary denial of his first
claim and remand for further proceedings.
Affirmed in part, reversed in part, and remanded for further proceedings.
CONNER, C.J., GROSS and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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