DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ARTURO GODINEZ,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

No. 4D15-4749

[April 27, 2016]

Petition for writ of habeas corpus to the Circuit Court for the 

Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; 

L.T. Case No. 03-12101CF10O.

Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort 

Lauderdale, for petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. 

Comras, Assistant Attorney General, West Palm Beach, for respondent.

PER CURIAM.

Arturo Godinez petitions for habeas corpus relief on two alternative 

grounds. First, he argues that our affirmance of his racketeering 

conviction on direct appeal is inconsistent with our subsequent reversal of 

his co-defendant’s conviction. Alternatively, he alleges that appellate 

counsel was ineffective for failing to raise the issue upon which his codefendant’s conviction was reversed. We grant the petition on the 

alternative ground of ineffective assistance of appellate counsel and find 

that Godinez is entitled to a new appeal.

Godinez was charged in a ninety-page indictment, along with seventeen

other defendants, with crimes arising from a large-scale scheme to sell 

adulterated prescription drugs to wholesale distributors. Godinez was 

charged with racketeering, conspiracy to commit racketeering, and 

organized scheme to defraud. To support the racketeering charge, he was 

accused of participating in various acts of mail and wire fraud. The 

evidence at trial showed that Godinez and several others provided illegallyobtained prescription drugs to Michael Carlow, who in turn sold the drugs 
2

to distributors to be sold to the general public. The scheme was a “rimless 

hub-and-spoke conspiracy”1—the suppliers each worked separately with 

Carlow and did not have relationships with each other.

Godinez was tried with co-defendant Joel de la Osa. Both defendants 

moved for judgment of acquittal at the close of the State’s case, arguing 

that due to the nature of Carlow’s scheme, they could not be held 

criminally liable for the acts of the other suppliers. Thus, the evidence did 

not establish that either of them directly participated in at least two of the 

predicate acts charged in the indictment, as required by the racketeering 

statute. The trial court denied the motions. Godinez was convicted as 

charged and sentenced to three concurrent terms of nine years in prison, 

to be followed by two years of community control and ten years of 

probation.

On direct appeal, Godinez’s appellate counsel argued that because of 

the “rimless hub-and-spoke” nature of the conspiracy, the State failed to 

prove the existence of a single unified enterprise. We affirmed per curiam. 

Godinez v. State, 138 So. 3d 1039 (Fla. 4th DCA 2014) (table).

In de la Osa’s appeal, counsel also argued that the State failed to prove 

the existence of an enterprise. Counsel further argued that because of the 

“rimless hub-and-spoke” nature of the conspiracy, de la Osa was not 

vicariously liable for the acts of the other suppliers, the other “spokes” 

from Carlow’s “hub.” Thus, without that liability, the State failed to prove 

de la Osa’s participation in at least two incidents of racketeering conduct. 

We agreed on the second point and reversed de la Osa’s racketeering 

conviction. de la Osa v. State, 158 So. 3d 712, 722–28 (Fla. 4th DCA), rev. 

denied, 182 So. 3d 631 (Fla. 2015).

In this petition, Godinez argues that our affirmance in his case is 

inconsistent with our subsequent reversal of de la Osa’s racketeering 

conviction, and therefore his conviction and sentence should be vacated. 

See Brumit v. State, 971 So. 2d 205 (Fla. 4th DCA 2007); Raulerson v. 

State, 724 So. 2d 641 (Fla. 4th DCA 1999); Romero v. State, 637 So. 2d 7 

(Fla. 4th DCA 1994).

We find that the two decisions are not inconsistent because Godinez’s 

appellate counsel failed to raise the issue upon which we reversed de la 

1 See Kotteakos v. United States, 328 U.S. 750, 754-55 (1946); United States v. 

Seher, 562 F.3d 1344, 1367–68 (11th Cir. 2009); United States v. Chandler, 388 

F.3d 796, 807–08 (11th Cir. 2004); see also de la Osa v. State, 158 So. 3d 712, 

723–24 (Fla. 4th DCA), rev. denied, 182 So. 3d 631 (Fla. 2015).
3

Osa’s racketeering conviction. Godinez’s counsel argued only that the 

State failed to prove the first element of racketeering, that Godinez was 

associated with an “enterprise.” In de la Osa, we expressly found that the 

scheme in this case satisfied the definition of an enterprise. 158 So. 3d at 

722–25. Godinez’s counsel did not argue that the State failed to prove the 

second element, that Godinez participated in a pattern of racketeering 

activity by engaging in at least two incidents of racketeering conduct. See 

§§ 895.02(4), 895.03(3), Fla. Stat. (2003) (requiring the State to prove (1) 

association with an enterprise; and (2) participation in a pattern of 

racketeering activity, defined as engaging in at least two incidents of 

racketeering conduct). The State’s failure to establish a pattern of 

racketeering activity is the point on which we reversed de la Osa’s 

racketeering conviction.

We therefore grant the petition on the alternative ground of ineffective 

assistance of appellate counsel. On the record before us, we cannot 

determine whether the State’s evidence at trial was sufficient to establish 

a pattern of racketeering activity in Godinez’s case. Thus, a new appeal is 

required.

Accordingly, this opinion shall be filed with the lower tribunal and 

treated as the notice of belated appeal of the judgment and sentence 

entered December 14, 2011. Upon receipt, the clerk of the lower court 

shall certify a copy of this opinion to this court in accordance with Florida 

Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a 

new case number, which shall be assigned upon receipt in this court of 

the certified opinion. All time requirements of the Florida Rules of 

Appellate Procedure shall run from the date of this opinion. If petitioner 

qualifies for appointed counsel, the trial court shall appoint counsel to 

represent him on appeal.

Petition granted.

WARNER, GROSS and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.