KAREN PLEVYAK HAY, A/K/A KAREN L. HAY, AND ROBERT RONALD HAY, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2012-01-27
Nos. 2D10-1596, 2D10-1678
WHATLEY and KELLY, JJ., Concur.
79 So. 3d 852 Florida District Court of Appeal, Second District (2012)

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Holding

The court held that the denial of the motion to suppress doctors' statements made to law enforcement was erroneous, but the denial of suppression for pharmacy records was correct.


Headnotes

[1] A guilty plea entered with the reservation of the right to appeal the denial of a motion to suppress is valid, and the merits of the denial are properly before the appell…

[2] Statements made by doctors to law enforcement during a drug investigation, confirming that a patient received prescriptions without disclosing other prescriptions, are su…

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Facts & Procedural History

Appellants pleaded guilty to drug charges after their motions to suppress statements made by their doctors to law enforcement were denied. The investi…

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Opinion of the Court
WALLACE, Judge.

WALLACE, Judge.

These consolidated cases1 involving a husband and a wife are controlled by this court’s recent decision in Mullis v. State, 79 So.3d 747 (Fla. 2d DCA 2011). In case number 2D10-1596, Karen Plevyak Hay, a/k/a Karen L. Hay, appeals her judgment and sentences for one count of drug trafficking, § 893.135(l)(e)(l)(c), Fla. Stat. (2008), and six counts of obtaining a controlled substance by withholding information, § 893.13(7)(a)(8), Fla. Stat. (2007 & 2008), following her guilty plea.2 In case number 2D10-1678, Robert Ronald Hay appeals his judgment and sentences for one count of drug trafficking, § 893.135(l)(c)(l)(c), Fla. Stat. (2008), and twenty-three counts of obtaining a controlled substance by withholding information, § 893.13(7)(a)(8), Fla. Stat. (2006, 2007, & 2008), following his guilty plea. On appeal, both Mr. and Mrs. Hay challenge the denial of their motions to suppress statements made by their doctors and the doctors’ employees (the doctors’ statements) to law enforcement during the investigation that led to the Hays’ arrest.3 Based on this court’s recent decision in Mullís, we reverse the circuit court’s order to the extent that it denied suppression of the doctors’ statements, and we remand for further proceedings.

As in Mullis, the charges against the Hays stemmed from a doctor-shopping investigation conducted by Detective Douglas Fowler, a narcotics investigator for the City of Temple Terrace. The facts of these cases, the circuit court’s ruling, and the arguments advanced at the trial and appellate levels are substantially similar to *854those in Mullís. The doctors’ statements to Detective Fowler may be grouped into four categories: (1) statements confirming that either Mr. or Mrs. Hay was a patient, (2) statements that the doctors had prescribed controlled substances to either Mr. or Mrs. Hay, (3) statements that neither Mr. nor Mrs. Hay had disclosed the receipt of a prescription for a controlled substance from another provider within the preceding thirty days, and (4) statements that the doctors would not have prescribed a controlled substance to either Mr. or Mrs. Hay if the doctors had known that he or she had received a prescription for a controlled substance within the preceding thirty days.

Here, as in Mullís, the Hays entered their guilty pleas with the understanding that they were reserving the right to appeal the denial of them motions to suppress. The circuit court ruled that its orders denying the Hays’ motions were dispositive. In addition, the circuit court informed both of the Hays that if the orders denying their motions were reversed on appeal, the charges against them would be dismissed on remand. We conclude that the merits of the circuit court’s orders are properly before us on appeal. See Fla. R.App. P. 9.140(b)(2)(A)(i).

As we did in Mullis, we affirm the orders on the Hays’ motions to suppress to the extent that the orders deny the suppression of the pharmacy records. Noting the absence of any evidence in the record that Detective Fowler attempted to provide either Mr. or Mrs. Hay with notice or to obtain a court-issued subpoena before contacting the Hays’ doctors, we reverse the orders to the extent that the orders deny the suppression of the doctors’ statements, and we remand for the circuit court to enter orders suppressing those statements.4 We note that because our decision reverses in part the circuit court’s rulings on the Hays’ motions to suppress, the Hays may be entitled to withdraw their pleas on remand. See England v. State, 46 So.3d 127, 130 (Fla. 2d DCA 2010) (holding that where “[i]t is unknown whether [the defendant] would have pleaded guilty if his motion to suppress the statements had been granted,” he should be given the option of withdrawing his plea on remand).

Our disposition of these cases is without prejudice to the Hays’ rights to raise any issues arising from Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011), in the trial court.

Affirmed in part, reversed in part, and remanded.

WHATLEY and KELLY, JJ., Concur.


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