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Man loses case, wins sympathy

By JAMAL THALJI
Published December 7, 2006

He's been on 60 Minutes. A New York Times columnist has championed his cause. Even those who prosecuted and convicted Richard Paey sympathize with the wheelchair-bound man serving 25 years for drug trafficking - for obtaining the drugs he needs for his debilitating pain.

Count among those sympathizers the 2nd District Court of Appeal.

The problem, a majority of the court ruled Wednesday, is that they can't help Paey.

They upheld his conviction and sentence by a 2-1 vote, but passed on this advice: Get the governor to commute the sentence.

"Mr. Paey's argument about his sentences does not fall on deaf ears," Judge Douglas Wallace wrote, "but it falls on the wrong ears."

Such advice from an appellate court is rare indeed, said University of Florida law professor Michael Seigel.

"The court looks at a situation that it thinks is unfair," he said. "It's powerless to do anything about it. So the only thing it can do is to make an appeal to the governor, who does have the power to do something about it."

Appeals to the Florida Supreme Court and the U.S. Supreme Court are possible. In the meantime, Paey's attorney, John Flannery II of Virginia, said he took the court's advice right away, filing a petition with the governor's office Wednesday.

It is unlikely Gov. Jeb Bush will be able to act before his term expires at the end of the year, but Flannery wants to start the process for Gov.-elect Charlie Crist.

Flannery did find solace in Associate Judge James Seals' blistering dissent that the mandatory minimum sentence Paey received was "cruel and unusual."

The Hudson man was arrested by the Pasco County Sheriff's Office and the federal Drug Enforcement Administration in 1997 after buying more than 1,200 painkillers with fake prescriptions.

The 48-year-old has multiple sclerosis and chronic pain since a 1985 car accident and failed surgeries.

But Paey possessed more than an ounce of the drugs. Regardless of whether he tried to sell them, under Florida law he is a drug trafficker. Before his 2004 conviction, he rejected a plea deal - on principle - that would have meant just house arrest.

Paey's wife, Linda, lives in Pasco with their three children. He is in the Tomoka Correctional Institution in Daytona Beach. Both took the news hard, Flannery said.

"He feels especially bad," the lawyer said, "because his wife and children were hoping to see him for Christmas."

Jamal Thalji can be reached at thalji@sptimes.com or (727) 869-6236.

[Last modified December 6, 2006, 23:03:30]