Paylan v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

CHRISTINA PAYLAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D2022-0304

December 11, 2024

BY ORDER OF THE COURT:

Upon consideration of appellant's motion for rehearing, motion for

rehearing en banc, request for certification and/or for written opinion,

filed on June 12, 2024,

IT IS ORDERED that the motion for written opinion is granted to

the extent that the opinion dated January 17, 2024, is withdrawn and

the attached opinion is substituted therefor. Appellant's motion for

rehearing, motion for rehearing en banc, and request for certification are

denied.

No further motions for rehearing will be entertained in this appeal.

I HEREBY CERTIFY THE FOREGOING IS A

TRUE COPY OF THE ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL, CLERK

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

CHRISTINA PAYLAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D2022-0304

December 11, 2024

Appeal from the Circuit Court for Hillsborough County; Kimberly K.

Fernandez, Judge.

Christina Paylan, pro se.

Ashley Moody, Attorney General, Tallahassee, and Alicia M. Winterkorn,

Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Christina Paylan appeals from the final order rendered January 18,

2022, denying her claims for postconviction relief brought under Florida

Rule of Criminal Procedure 3.850. With the benefit of thorough briefing

and oral argument and after careful review of the voluminous record, we

affirm.

1. Background

Formerly a licensed physician, Paylan owned a plastic surgery

practice in Tampa. On June 13, 2011, Carole Morales, accompanied by

her husband, Louis Morales, had an initial consultation with Paylan

regarding various cosmetic procedures. Paylan gave the Moraleses an

initial cost estimate and created a patient file, which included a patient

history form that Carole had completed and copies of Carole's driver's

license and health insurance card. A few days later, Paylan sent the

Moraleses a formal cost estimate that exceeded the initial estimate by

thousands of dollars.

At trial, the Moraleses testified that because the formal estimate

exceeded their budget, they did not commit to moving forward with the

procedures and that after Louis saw an unflattering newspaper article

about Paylan about a week later, they decided against having Paylan

perform any procedure at all. Louis testified that sometime in late June,

he spoke with Paylan over the phone and told her that Carole would not

be undergoing any procedure at her office.

On July 1, Paylan went to Habana Hospital Pharmacy and

presented a prescription for Demerol1 bearing Carole's name along with

copies of Carole's driver's license and insurance card. The pharmacy,

however, did not fill that prescription, and about four months later,

Paylan was arrested and charged with attempting to obtain a controlled

substance by fraud and criminal use of personal information. She also

faced similar charges in an unrelated prosecution involving another

patient.

Paylan represented herself at various points in both cases and

proved to be an unusually adept pro se advocate. During the initial

Morales prosecution, she filed motions, deposed witnesses, and

demonstrated an understanding of the rules of criminal procedure,

1 Demerol is an opioid used for the treatment of moderate to severe

pain. Demerol Vial - Uses, Side Effects, and More, WEBMD,

https://www.webmd.com/drugs/2/drug-3914/demerol-injection/details

(last visited Nov. 4, 2024).

2

ultimately causing the State to dismiss the case after it was unable to

obtain a continuance. In the other criminal case, she obtained a

dismissal of all charges on speedy trial grounds in 2013. In April 2014,

however, the State refiled the charges involving Carole.2

At a pretrial hearing on those charges, Paylan appeared pro se and

stated that she had not yet decided whether to hire counsel for the trial

that was to begin ten days later. The trial court conducted a Faretta3

inquiry, confirming that if she were to proceed pro se, she would be doing

so knowingly and voluntarily and with an awareness of the dangers and

disadvantages. Further, the court warned Paylan that it would not grant

a continuance if she decided to retain trial counsel.

a. The Trial

Nonetheless, Paylan did retain trial counsel: William Barzee. As

framed in its opening statement, the defense's theory at trial was that

although Paylan had gone to Habana Pharmacy on July 1, 2011, to fill a

prescription for Demerol, that prescription had been for a patient other

than Carole Morales. Barzee asserted that Paylan routinely filled

prescriptions at Habana Pharmacy for Demerol for her surgical patients

but that she had never attempted to fill a prescription there for Carole

Morales, nor had she ever submitted copies of Carole's driver's license or

insurance card to the pharmacy's staff.

The State presented testimony from three Habana Pharmacy

employees.4 Barzee cross-examined them extensively, challenging their

2 The State also charged Paylan in that case with attempted

trafficking but dismissed that charge before trial.

3 Faretta v. California, 422 U.S. 806 (1975).

4 Although there is also some surveillance video of Paylan's visit to

the pharmacy, the video cuts off before Paylan can be seen handing

anything discernable to pharmacy employees.

3

recollections that Paylan had indeed submitted a prescription for Carole

and suggesting that they had coordinated their testimony at a pretrial

meeting.5

The State also called Carole and Louis, who both testified that they

had had an initial consultation with Paylan, that they had had doubts

about proceeding because of the cost, and that the newspaper article had

put the kibosh on the whole idea. Carole testified that she had never

scheduled any procedures with Paylan. Louis went a step further and

testified that shortly after seeing that article, he had called Paylan and

told her they would not be going through with any procedures. Louis

testified that this was his final call to Paylan and that although Paylan

had continued to call him and his wife in early July, he had returned

none of those calls.

After the State rested, the court inquired whether Paylan intended

to testify in her own defense. Paylan confirmed that she understood her

right to testify, that she understood that the decision whether to testify

was solely her own, and that if convicted, she would not later claim that

trial counsel had prevented her from testifying. The defense ultimately

rested without calling any witnesses.

Consistent with his opening statement and the general theme

running through his cross-examination of the Habana Pharmacy

employees, Barzee argued in closing that the prescription Paylan had

submitted that day was not for Carole Morales. The jury rejected that

5 This defense was consistent with Paylan's insistence that the

offense had been manufactured by case agent Brian Bishop, who, she

asserted, had obtained the damning copy of Carole's prescription not

from the Habana Pharmacy employees but directly from Paylan's internal

patient files through a contact at the Department of Health.

4

theory, finding Paylan guilty on both counts. On direct appeal, we

affirmed the judgment and Paylan's 364-day sentence.6

b. The Postconviction Proceedings

At the charge conference, Barzee had requested that the jury be

instructed that pursuant to section 893.05, Florida Statutes (2013), "[a]

practitioner, in good faith and in the course of his or her professional

practice only, may prescribe, administer, dispense, mix or otherwise

prepare a controlled substance." Barzee objected, however, to the trial

court's decision to then further instruct the jury that Paylan bore the

burden of establishing good faith rather than the State bearing the

burden of establishing lack of good faith as part and parcel of its burden

to show the requisite intent. The court overruled the objection and gave

both instructions seriatim.

Paylan, however, argues that this is the defense that Barzee should

have pursued all along, i.e., that the submitted prescription had been

written for Carole Morales but that as a doctor, Paylan had been legally

authorized to submit it because she had done so in a good faith belief

that Carole intended to go forward with surgery. Paylan thus sought

postconviction relief on numerous claims. The postconviction court

summarily denied some claims but held an evidentiary hearing on

several claims of ineffective assistance of counsel—including claims

premised on Barzee's failure to move for a trial continuance, the theory of

defense he presented at trial, and his failure to present any evidence—

6 Paylan v. State, 208 So. 3d 709 (Fla. 2d DCA 2016) (table

decision).

5

and on a claim of a Brady7 violation.8 Ultimately, however, the

postconviction court denied all of Paylan's claims for relief.

With respect to her ineffective assistance of counsel claims, Paylan

testified that Barzee had hustled her to trial despite her concern that she

should request a continuance to give him time to review all the discovery.

Barzee, she claimed, had assured her that a continuance was

unnecessary and that obtaining one would work to the State's benefit.

Further, Paylan testified that she had informed Barzee that she had

already arranged for several witnesses to testify on her behalf—another

cosmetic surgeon, a member of her office staff, and a forensic computer

expert—and that Barzee had assured her that he would in fact call those

witnesses.

Although acknowledging that she had told Barzee that she had not

submitted a prescription for Carole Morales at Habana Pharmacy, Paylan

testified that Barzee had never discussed any defense strategy with her,

let alone the theory of defense ultimately pursued at trial. Additionally,

Paylan testified that after the State had rested, Barzee had told her that

the State had not proven its case and that there was no need to put on

any evidence. Based on this advice, Paylan claimed, she had waived her

right to testify in her own defense.

7 Brady v. Maryland, 373 U.S. 83 (1963).

8 Paylan filed an amended motion for postconviction relief in 2017.

At the evidentiary hearing on certain claims raised in that motion, Paylan

moved to disqualify the postconviction judge. That judge denied Paylan's

motion for disqualification, and Paylan petitioned this court for a writ

prohibiting that judge from presiding further. While the petition was

pending, the postconviction judge denied Paylan's amended motion. We

subsequently granted Paylan's petition, Paylan v. State, 263 So. 3d 23

(Fla. 2d DCA 2019), and the successor postconviction judge granted

Paylan a new evidentiary hearing on many of her claims.

6

Barzee's testimony significantly conflicted with Paylan's. Although

unable to recall details of his early interactions with Paylan, Barzee

nonetheless recounted their discussing several key decisions leading up

to trial and jointly deciding critical aspects of her defense strategy. For

example, Barzee testified that he and Paylan had considered each

potential witness's anticipated testimony, whether that testimony would

fit into their theory of defense, and how the State might challenge each

witness's credibility or conclusions. He insisted that he and Paylan had

discussed the pros and cons of requesting a continuance and that given

their mutual concern that any delay would allow the State a chance to

file a notice of intent to rely on Williams9 rule evidence, they had jointly

agreed to push through to trial. Significantly, Barzee repeatedly testified

that Paylan had been convinced that Williams rule evidence would "sink

her case."10 Further, he recounted discussing with Paylan all possible

defense theories and that they had jointly landed on the one that he

ultimately had pursued.

9 Williams v. State, 110 So. 2d 654 (Fla. 1959).

10 We note that regardless of whether the State had moved pretrial

to introduce such evidence in its case-in-chief, such evidence would have

been admissible to rebut any defense that put Paylan's intent squarely at

issue. See § 90.404(2)(d)1, Fla. Stat. (2012) ("No notice is required for

evidence of offenses used for impeachment or on rebuttal."); see also

Gosciminski v. State, 132 So. 3d 678, 696 (Fla. 2013) ("[N]o notice is

required for evidence of offenses used for impeachment or on rebuttal."

(citing § 90.404(2)(c)1, Fla. Stat. (2009))); Gillig v. State, 356 So. 3d 260,

266–67 (Fla. 4th DCA 2023) ("[Rebuttal] evidence 'is permitted to refute a

defense theory or to impeach a defense witness.' " (quoting Rimmer v.

State, 825 So. 2d 304, 321 (Fla. 2002))); Harden v. State, 87 So. 3d 1243,

1246 (Fla. 4th DCA 2012) ("[E]vidence of other crimes is admissible

where such evidence 'tends to disprove a defendant's theory of defense or

attempt to explain his intent.' " (quoting Gould v. State, 942 So. 2d 465,

467 (Fla. 4th DCA 2006))).

7

With respect to the asserted Brady violation, Paylan claimed that

the State had concealed an agreement that it had struck with the

Moraleses: in exchange for their damaging testimony, the State would

consider reducing the fifteen-year sentence that Louis Morales, Jr.

(Morales, Jr.)— Louis's adult son from his prior marriage to Ruth

Caballero—had already begun serving in an unrelated case. In support

of this claim, Paylan presented testimony from Caballero and her

daughter, Amber Albelo, who is Morales, Jr.'s half-sister.

Caballero testified that Louis repeatedly had assured her that

Morales, Jr., would receive a lesser sentence if Louis testified favorably

for the State in Paylan's trial.11 Albelo testified that Louis had hired

Morales, Jr.'s lawyer, Nicholas Matassini, and that in Matassini's

presence, Louis had assured her and Caballero that he and Matassini

had things under control.

After Paylan's trial, Morales, Jr.'s sentence was in fact reduced

from fifteen years' imprisonment to five years' imprisonment. Testifying

at Paylan's postconviction evidentiary hearing, however, Matassini denied

being present for any conversation involving Caballero, Albelo, and Louis

and denied knowledge of any understanding between Louis and the State

regarding Morales, Jr. He testified that after Morales, Jr., had been

convicted and sentenced, he had filed a motion for mitigation of Morales,

Jr.'s sentence, but it was not until August 21, 2014—the day before the

hearing on that motion—that he had learned for the first time about the

Moraleses' involvement in Paylan's criminal case. Only then had he

contacted the State and requested that their cooperation in Paylan's case

11 The successor postconviction judge determined that Caballero

was unavailable to testify at the successive evidentiary hearing, and she

therefore admitted into evidence Caballero's testimony from the

evidentiary hearing before the original postconviction judge.

8

be considered in conjunction with Morales, Jr.'s motion for mitigation of

sentence. Assistant State Attorney Christian Tsoubanos, who had

prosecuted Morales, Jr., at trial, was copied on that email.

Matassini testified that on the day of Morales, Jr.'s mitigation

hearing, Tsoubanos had briefly spoken with him and Morales, Jr., before

the motion was called up, inquiring into Morales, Jr.'s time in prison and

what plans he had upon release. Tsoubanos, in short, testified that his

decision not to oppose Morales, Jr.'s motion for mitigation had turned on

that conversation with Matassini and Morales, Jr., and on reservations

that he had had about Morales, Jr.'s sentence since its imposition, not

on the Moraleses' cooperation in Paylan's prosecution.

2. Discussion

Paylan raises eleven main issues on appeal. The majority of those,

even when couched in terms of legal error, would require this court to

reevaluate various credibility determinations by the postconviction court.

Indeed, we note that credibility has been at the core of most, if not all, of

Paylan's challenges to her conviction and to its collateral consequences.12

12 Paylan has pursued legal action against virtually every entity and

individual even tangentially involved in the criminal proceedings and the

resulting fallout. See, e.g., Paylan v. State, 108 So. 3d 1095 (Fla. 2d DCA

2012) (successfully petitioning for writ prohibiting trial judge from

further presiding over initial case); Paylan v. Dep't of Health, 160 So. 3d

936 (Fla. 1st DCA 2015) (seeking certiorari review of the Florida

Department of Health's suspension of Paylan's medical license); Paylan v.

Brown, 207 So. 3d 877 (Fla. 2d DCA 2015) (petitioning for writ

prohibiting trial judge from presiding further in civil case against

Assistant State Attorney Christine Brown); Paylan v. Fla. Bd. of Med., No.

8:15-cv-2817-T-33MAP, 2015 WL 8265595 (M.D. Fla. Dec. 9, 2015)

(denying Paylan's emergency motion for temporary restraining order in

suit brought under 42 U.S.C. § 1983 against Florida Board of Medicine,

Department of Health, and two doctors in their individual capacities

following Paylan's suspension by Florida Board of Medicine); Paylan v.

Morales, 229 So. 3d 337 (Fla. 2d DCA 2016) (denying petition for writ of

9

The recurring theme in all her challenges, from the initial investigation to

date, has been that someone on the other side or in cahoots with the

other side is lying, whether out of personal animus, for personal gain, or

to cover their own incompetence.

But even if she were right, it would not be our role to "fix" it. We

may not be swayed by concerns of factual guilt or innocence. Nor may

we decide the credibility of witnesses. To the contrary, we are

affirmatively precluded from doing those things. See, e.g., Kotteakos v.

United States, 328 U.S. 750, 763 (1946) ("[I]t is not the appellate court's

function to determine guilt or innocence." (citing Weiler v. United States,

323 U.S. 606, 611 (1945))); Lambrix v. State, 39 So. 3d 260, 268 (Fla.

2010) ("Appellate courts do not 'reweigh the evidence or second-guess the

circuit court's findings as to the credibility of witnesses.' " (quoting Nixon

v. State, 2 So. 3d 137, 141 (Fla. 2009))); Wait v. State, 212 So. 3d 1082,

1085 (Fla. 1st DCA 2017) ("This Court will not substitute its judgment for

that of the post-conviction [sic] court on questions of fact, the credibility

of witnesses, or the weight given to the evidence."). Instead, our role here

is limited to reviewing whether competent substantial evidence supported

the postconviction court's findings of fact and to reviewing de novo its

prohibition stemming from lawsuit against Carole and Louis Morales);

Paylan v. Teitelbaum, No. 1:15-cv-159-MW-GRJ, 2017 WL 11490055

(N.D. Fla. May 30, 2017) (denying Paylan's motion for sanctions in §

1983 suit brought against Dr. Scott Teitelbaum, University of Florida,

and UF & Shands Florida Recovery Center); Paylan v. Fitzgerald, 223 So.

3d 431, 432–33 (Fla. 2d DCA 2017) (granting petition for writ of certiorari

and quashing interlocutory discovery order in legal malpractice case

against lawyer and law firm "with respect to their representation of her in

several criminal cases"); Paylan v. Dirks, 847 Fed. App'x 595 (11th Cir.

2021) (affirming partial dismissal and partial summary judgment of her

complaints against the City of Tampa, Assistant State Attorneys Brown

and Darrell Dirks, and other law enforcement officials).

10

conclusions of law. See Taluy v. State, 385 So. 3d 627, 629 (Fla. 2d DCA

2024) (quoting Campbell v. State, 247 So. 3d 102, 106 (Fla. 2d DCA

2018)).

Having undertaken that role, we find no error. The postconviction

court's well-reasoned, sixty-four-page order (plus attachments) is firmly

grounded in both the evidence and the law. Were we to do anything at

this point other than simply affirm, we would be adding nothing to the

canon beyond what that court has already correctly invoked.

Affirmed.

SLEET, C.J., and BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.

11