RICHARD PAEY'S APPEAL
TO THE SUPREME COURT OF FLORIDA
We have received a lot of inquiries about where we stand with our appeal to the
Supreme Court of Florida on behalf of Richard Paey.
This is a fair summary of where we stand.
I. RICHARD PAEY'S APPEAL
We requested a review by the Supreme Court of Florida based on the requirements
set forth by the Supreme Court:
(First) does the appeal involve a question of the validity of a state statute,
(Second) does the appeal involve the constitutionality of a state statute, and
(Third) does the appeal involve a conflict in case authority within the state.
This is the link to the complete brief submitted by Richard Paey to the Supreme
Court of Florida -- RICHARD PAEY'S BRIEF.
As for the first element of our appellate argument, we challenged whether
Florida's drug "trafficking" statute was valid when invoked in the prosecution of a
chronic pain patient who "possessed" and "used" the medication only for his own medical
condition and thus did no drug "trafficking" and thus the "possession" could not be said
to be in contemplation of "trafficking" in drugs.
As for the second element, we challenged whether the statute as applied wasn't
unconstitutional, in the sense that it was "cruel and unusual" to impose a day of
confinement when prosecuting a chronic pain patient for his status as a patient, using a
statute intended to capture drug dealers.
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As to the third element, we asked the Court to hear our appeal because, while the
Appellate Court said there was no distinction between "trafficking" and "possessing", in
reliance on State v. Benitez, 395 So. 2d 514 (Fla. 1981), that is not what the court said in
the Benitez opinion, nor what the dissent said in the Court of Appeals opinion regarding
Benitez.
II. THE STATE'S OPPOSITION TO RICHARD'S APPEAL
The State's opposition, filed on February 5, 2007, sweeps aside these three
reasons cited for the Supreme Court to consider our case. But its sweep is hardly
convincing.
Even as the State objects to Richard's reason, they appear to concede their
validity at every turn, at least for purposes of having the Supreme Court consider the
appeal.
This is the link to the State's Brief in Opposition so you may read it for yourself STATE'S BRIEF IN OPPOSITION.
The State's Opposition to Richard Paey's appeal stated, at p. 2, that the basis of
Richard Paey's appeal was that the 25-year mandatory minimum sentence violated the
cruel and unusual punishment clause of the Eighth Amendment to the U.S. Constitution,
and to the state constitution.
The State's opposition also stated that the Appellate Court considered whether the
punishment that Richard Paey suffered was "so grossly disproportionate" as to be cruel
and unusual, at p. 3.
That would appear to be a consideration of whether the statute was
unconstitutional as it was applied to Richard.
The State's opposition also stated that the Appellate Court relied on a state
decision, Benitez, cited above, that approved mandatory minimums in certain cases. That
would also appear to be a consideration of state case authority that we insist is in conflict
with the decision the court reached in Richard's case, as reflected not only in our
argument but what the dissenting opinion had to say as well. It also invokes questions
about the validity of the statute as applied to Richard.
The State's argument appears to be that the Supreme Court should ignore its own
rules and defer to the Court of Appeals, at p. 6, even on those matters that the Supreme
Court has said it will rightly and fairly consider.
The State says that the Court of Appeals should be the court of last resort,
meaning no other court above that court.
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But, if that is so, then why does the Supreme Court have rules providing
otherwise, inviting appeals on precisely the grounds we invoked?
The State engages in sophistry when it insists that the Appellate Court did not
uphold the constitutionality or validity of a statute as applied to Richard Paey.
Not only is that what the appellate court did, the majority confessed anguish that
they had done it, for the wrong done to Richard the majority thought, was deserving of a
remedy but one that they, the Court, couldn't render, referring Richard instead to the
Governor to seek clemency. The Court explicitly said that Richard's argument did not
fall on deaf ears, it fell on the wrong ears.
Finally, we cannot overlook the fact that the State makes NO reference to the
dissenting opinion that agreed with our position in virtually every respect, almost as if the
dissent certified the question to the Supreme Court of Florida.
The State makes no reference because - what? - they hope the Supreme Court
won't see it.
Or they will facilitate the Supreme Court's disregard of what one of the judges of
the panel had to say on these pertinent issues - that is on all fours with our argument.
This is the link to the Appellate Court's opinion including the Dissent so that you
can consider what the majority said and what the dissent had to say -- APPEALED
OPINION.
Having faulted us for discussing the law, then the State, in its opposition, does
precisely the same thing, arguing that it is up to the state legislature to decide what is a
crime, at p. 8.
But here's the rub. That is the law but only up to a point.
The State has the right to define a crime but not just any crime.
The State may not, for example, define a crime, saying it is drug "trafficking"
when it is nothing of the sort, or impose a punishment on a patient that is cruel and
unusual.
Such actions by a legislature are constitutionally impermissible as applied to the
Accused, exceeding the grant of authority to the legislature to act, prompting the courts to
check this excess, and that's the argument we made to the Court of Appeals, and that we
seek to have before the Supreme Court of Florida.
CONCLUSION
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We have heard a fair number of persons ask us whether "these people" in the State
of Florida think and feel differently than everyone else - and why haven't they acted
sooner.
I don't believe this is about "the people" in Florida. I think the "people"
understand what is going on - and they don't like it.
This is about our government and its inability to render justice when they've
gotten it wrong, even to admit they've gotten it wrong, gone too far.
We have filed a fair request for an appeal within the terms the Supreme Court of
Florida established for considering such an appellate argument and we hope and trust the
Supreme Court will grant Richard his day in court to argue the merits of that appeal.
Respectfully Submitted,
John P. Flannery II
Counsel for Richard Paey
office: 703-771-8344
e-mail: JonFlan@aol.com
web: http://www.johnpflannery.com/
Book: PAIN IN AMERICA
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