On Feb 14, 2018, the State of Florida, through AG Pamela Jo Bondi, and AAG Richard Valuntas, appealed the “downward departure” sentencing of Barry Michael Schultz, MD which occurred in 2016 by now-retired Circuit Judge Jack Cox, to the District Court of Appeal of the State of Florida Fourth District.

The defendant was represented by two Public Defenders, Carey Haughwout and Ian Seldin from West Palm Beach. The defendant cross appealed his convictions for trafficking in oxycodone.

The court, under Circuit Judge Laura Johnson, affirmed the conviction stating, as courts usually do, that

“Schultz’s arguments on cross appeal are without merit and require no further discussion.”

However, the court, also as it usually does, supported the prosecution and reversed the departure sentence and remanded for resentencing within the guidelines. Reasons given were:

Dr. Schultz had been convicted by jury of 55 counts of drug trafficking which gave him 2549 sentencing points.  The lowest permissible sentence under the criminal punishment code was approximately 157.5 years.  At sentencing, the State requested concurrent life sentences on each count, with concurrent 25 year mandatory minimum sentences. In contrast, the defense requested that Schultz be concurrently sentenced to the bottom of the guidelines as opposed to the life sentence sought by the State. The defense had no objection to the scoresheet and requested that his mandatory minimums run concurrently. The trial court then sentenced Schultz to the 25 year minimum mandatory sentence on each count to run concurrently. The State objected to the sentences arguing that there was no basis for a departure from the bottom of the guidelines. Nevertheless, the trial court proceeded with the sentence as imposed.  Thereafter, the State gave notice of appeal.

On appeal, the State argued that, under State v. Murray, 161 So. 3d 1287 (Fla. 4th DCA 2015), the trial court erred in sua sponte entering a downward departure sentence on Schultz’s convictions.  It argues that the trial court failed to articulate any basis for the departures and that no evidence was presented at the sentencing hearing to support a departure.  The State further argues that the trial court failed to articulate in writing the basis for the downward departures pursuant to section 921.002(3), Florida Statutes (“Any sentence imposed below the lowest permissible sentence must be explained in writing by the trial court judge.”).

In Murray, this Court concluded that, in the absence of written or oral findings, a downward departure sentence was improper and remanded for resentencing within the guidelines.  Notably, as in Murray, Schultz did not file a motion for downward departure, but merely requested a sentence at the bottom of the guidelines.  Thus, no evidence was presented at the sentencing hearing to support a departure. Therefore, the trial court erred by not  stating it was departing, not orally articulating reasons for doing so, and failing to enter a written order memorializing the reasons for departure.  As such, we reverse and remand the departure sentence for resentencing within the guidelines.

So back in the lower court, Dr. Schultz was resentenced last week to 157 years in prison for “drug trafficking”, which is now the term the government uses for a pain management physician doing his/her job. So unless we do our job of exposing these attacks on doctors as the illegal government overreach that it is, Dr. Schultz will be in prison for the rest of his life.

How Did This Happen?

Dr. Schultz had surrendered his medical license when he pleaded guilty to a manslaughter charge concerned the 2010 death of a 50-year-old patient who overdosed on methadone. That’s like the car dealer you bought your car from taking responsibility for your hitting and killing someone on the highway.  For that plea, he got a sentence of 5 years, but it also set a paper trail against him for what the prosecutors had planned.

At his 2015 drug trafficking trial, prosecutors slammed Schultz’s prescriptions as “outrageous” and blasted his decision to make money by opening a pharmacy inside his medical office, even though he charged less for prescriptions than the area pharmacies. None of that is illegal or criminal. Schultz testified that he prescribed for his patients with high tolerances, and that they really needed relief. Obviously, though, the government propaganda won out in the jury box.

Schultz used to be so highly regarded for his geriatric medical expertise that he was frequently called upon by the federal government to testify in nursing home patient-abuse cases. But then a crackdown on opioid-prescribing physicians led to his investigation in 2010, followed by his arrest in 2013. The doctor continued to insist he practiced in “good faith.” At his trial, Dr. Schultz testified that he kicked patients out of his practice if he suspected they were abusing the medication.

“I didn’t care about the money to the extent that I would be willing to treat somebody who was doing something illegal with their medicine.”

It is obvious that the jurors were ignorant as to the law. Dr. Schultz was convicted on jurors’ concept that the number of pills was too many or that, being a gerontologist, pain management was “out of his realm”, or that he didn’t discuss alternatives or make attempts to wean the patient. None of these reasons are legitimate demonstrations of criminality.

The jury was also mislead by the prosecution’s lies. Prosecutor Godden assured the jury the issues at the trial are specific to Schultz and not an attack on the medical industry or particular drugs.

“This case will not be an indictment of all doctors,” she promised. “This case will not be an indictment of pain medications.”

What a load of BS. But the panel bought it and reached a consensus that prosecutors Barbara Burns and Lauren Godden presented ample evidence against Schultz.

“It seemed almost like a no-brainer,” one juror said.

The defense attorney used the usual white collar approach of defense—pitting their expert witness who stated that the prescriptions appeared to be “totally appropriate” and “in good faith”  against the prosecution’s expert witness who said Dr. Schultz did not meet a reasonable “standard of care” for the five patients concerning the doctor’s criminal counts and that the prescriptions “did not appear medically necessary based on the records I reviewed.” And the result being a conviction shows where this type of defense will always go.

By the way, the government witness was Dr. Mark Rubenstein, a physiatrist at 4495 Military Trail, Suite 209, Jupiter, FL 33458.  Chronic pain patients and representatives of doctors from Florida in prison need to set up a protest that never quits (like those at Planned Parenthood sites) at his office, as he is also a murderer of the innocent by his actions. And no legitimate pain patient should be gracing his reception room.

Now, as the government attacks good compassionate physicians like Dr. Schultz and forces legitimate pain patients to the street where more than likely they will run into illegal fentanyl-laced pills, the overdose rate is climbing. In 2016, 596 people died of opioid overdoses in Palm Beach County and 582 in Broward, according to medical examiner statistics. In Florida there are 15 overdoses per day. Most of those are BECAUSE of government overreach into medicine.

To end these attacks, restore pain management, and provide compensation to all the families that have been destroyed by government overreach, we must get the Controlled Substance Act repealed.  Join Doctorsofcourage to get that done. Learn what we teach and spread the word.  NO DRUG CAUSES ADDICTION!! Let’s end the War on Drugs, Doctors and Pain Patients, end the black market, solve the southern border crisis, and restore proper pain management.  It CAN be done! 

Addendum:

I have failed in my mission to end these attacks on doctors and pain patients. Through John Bevere’s book The Bait of Satan, I have figured out why—my lack of forgiveness to those who attacked me. As in Mark 11: 24-26:

Therefore I say to you, whatever things you ask when you pray, believe that you receive them, and you will have them. And whenever you stand praying, if you have anything against anyone, forgive him, that your Father in heaven may also forgive you your trespassed. But if you do not forgive, neither will your Father in heaven forgive your trespasses.

And when you do not do the will of the Father, you are estranged from him and he will ignore you.  So we all must forgive the agents who attacked us in order for things to be made right through any of our works.

Jesus said

“Greater love has no one than this, than to lay down one’s life for his friends.”

But we cannot lay down our lives for God unless we know Him well enough to trust Him. We must have the assurance that He would never do anything to harm us. He always looks out for what He knows is in our best interest. As a nation, those of us suffering from these attacks must understand that we are serving as God’s messengers of love.  We must forgive those who persecute us and love them instead, following God’s will for us. Then and only then will we see fruits from our labor.

So I hope that everyone who has suffered from what happened to Dr. Schultz can trust the Lord, forgive those who have hurt you, and help bring this country back to the God-fearing country that our forefathers founded. Then, and only then, can you be a part of the effort to stop these attacks. I look forward to that day.