M.P., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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M.P., a juvenile, was charged with selling fake controlled substances under Florida Statute 817.563. The trial court denied his motion to dismiss based on claimed constitutional infirmities, and he entered a nolo contendere plea. The appellate court affirmed, holding that section 817.563 is constitutional and that a defendant can be guilty even if he never intended to sell a controlled substance but instead perpetrated a complete fraud from the start.
Section 817.563 is constitutional. A defendant can be guilty of violating the statute even if he never intended to sell a controlled substance, provided he offered to unlawfully sell a controlled substance (an unauthorized sale). The statute's requirement of an 'offer to unlawfully sell a controlled substance' refers to an offer of an unlawful sale regardless of whether the defendant intended to actually sell a controlled substance.
[1] A statute prohibiting the sale of a substance in lieu of a controlled substance is constitutional.
[2] A person can be guilty of offering to sell a controlled substance and then selling an uncontrolled substance in lieu thereof, even if the intent from the beginning was to…
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Join FLexlaw to unlock all legal intelligence“persons charged can be guilty of violating section 817.563 even if their intent is from the beginning to sell an uncontrolled substance, and the original "fake" offer to sell a controlled substance is a complete subterfuge”
Establishes the core holding that the defendant's original intent to sell a fake substance does not preclude guilt under the statute.
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Join FLexlaw to unlock all legal intelligenceM.P. offered to sell Methamphetamine ('speed') to three different persons but instead sold each of them 'fake speed.' He was charged with three counts…
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CAMPBELL, Judge.
Appellant, a juvenile, was charged by petition for delinquency with three counts of sale of a substance in lieu of a controlled substance in violation of section 817.563, Florida Statutes (1981). Appellant allegedly offered to sell to three different persons Methamphetamine (“speed”) but instead sold each of them "fake speed.” Appellant moved to dismiss the charges, maintaining that section 817.563 suffered from constitutional infirmities. The trial judge denied the motion, and appellant entered a plea of nolo contendere, reserving the right to appeal the denial of the motion to dismiss. Adjudication of delinquency was withheld by the trial court, and appellant was placed in a community control program. Appellant filed a timely notice of appeal, and we affirm.
The same issues raised here by appellant were recently argued in State v. Thomas, 428 So. 2d 327 (Fla. 1st DCA 1983), in which our colleagues in the First District held section 817.563 to be constitutional. We agree and adopt the reasoning of the court in that case with one exception. While we may be misinterpreting what the court said in Thomas, we are concerned with its statement that section 817.563 requires the state to prove “that the defendant agreed, consented or offered to sell a substance which the defendant knew to be a controlled substance (and then sold an uncontrolled substance in lieu thereof).” Thomas, at 329-330 (emphasis added).
Our particular concern is with the emphasized language. We interpret that statement to require that it be proven that the defendant originally intended to sell a controlled substance. If that interpretation is correct, we disagree, for we conclude that persons charged can be guilty of violating section 817.563 even if their intent is from the beginning to sell an uncontrolled substance, and the original “fake” offer to sell a controlled substance is a complete subterfuge. While trying not to strain too much with the language, we conclude that the requirement of the statute that there be an “offer to unlawfully sell to any person a controlled substance” has reference to an offer of an unlawful sale, i.e., a sale not authorized by law, regardless of the fact that there is never any intent to actually sell a controlled substance. In other words, the defendant could be guilty of violating the statute, if from the beginning he planned the entire transaction as a “scam” or “sting” type of operation.
AFFIRMED.
HOBSON, Acting C.J., and GRIMES, J., concur.
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Citator
Cited By (12 total)
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State v. Bussey, 463 So. 2d 1141 (Fla. 1985)…that if a person offers to sell an illegal drug and then actually sells a legal substance the act is a felony or misdemeanor depending on which type of illegal substance was originally offered. However, the Second District in M.P. v. State, supra, [430 So. 2d 523 (Fla. 2d DCA 1988)] has held that there is no necessity of any intent to actually sell a controlled substance. The First District held in Thomas [State v. Thomas, 428 So. 2d 327 (Fla. 1st DCA 1983) ] that Section 817.563 only applies when the defend…
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Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984)…d statute and an improper exercise of police power. He argues that in State v. Bussey, 444 So. 2d 63 (Fla. 4th DCA 1984), the Fourth District ruled that section 817.-563 is unconstitutional, and that this court should follow suit. In M.P. v. State, 430 So. 2d 523 (Fla. 2d DCA 1983), this court considered this same issue and held that section 817.563 was constitutional. See also Houser v. State, 453 So. 2d 484 (Fla. 2d DCA 1984); State v. Growden, 437 So. 2d 783 (Fla. 2d DCA 1983); State v. King, 435 So. 2d 3…
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State v. Bussey, 444 So. 2d 63 (Fla. 4th DCA 1984)…ance. This statute protects the public from counterfeit drugs — even if such drugs are harmless. Carrying it a step further, the Second District Court of Appeal has agreed with the First District Court of Appeal, at least in part, in M.P. v. State, 430 So. 2d 523 (Fla. 2d DCA 1983). In this case the Second District found Section 817.563 constitutional but contrary to the First District concluded that there was no requirement of any specific intent contemplated by the statute. Once again, the statute is discu…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sherman v. E.V. Smith Co. & Fla. Farm Bureau, 428 So. 2d 327 (Fla. 1st DCA 1983)
- State v. Harry V. Thomas/Hubert D. Williams, 428 So. 2d 327 (Fla. 1st DCA 1983)