STATE OF FLORIDA, APPELLANT,
v.
GREGORY A. MASKE, FRANCIS ALAN PLOEGERT, AND GARY ANDREW UECKER, APPELLEES
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The court held that the trial court improperly granted motions to dismiss because the statute under which the appellees were charged has been upheld as constitutional by appellate decisions.
Appellees were charged with selling a controlled substance substitute in violation of section 817.563(1), Florida Statutes (1981). The trial court dis…
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RYDER, Judge.
The state appeals from the granting of the appellees’ motions to dismiss. We reverse and remand with instructions.
In April 1982, the appellees were charged by information with agreeing, consenting or offering to unlawfully sell a controlled substance (methaqualone), and then selling another substance in lieu of the controlled substance in violation of section 817.563(1), Florida Statutes (1981). Subsequently, the appellees filed motions to dismiss the information asserting that the statute was unconstitutional on its face and in application. The trial judge granted the motions to dismiss adopting in part the rationale and holding of the trial court in State v. Thomas, (Fla. 4th Cir. Ct. 1982).
At the time he ruled, the trial judge did not have the benefit of the teachings contained in the appellate decision of State v. Thomas, 428 So. 2d 327 (Fla. 1st DCA), petition for review denied, 436 So. 2d 101 (Fla.1983), nor the decision in M.P. v. State, 430 So. 2d 523 (Fla. 2d DCA 1983). See also State v. Growden, 437 So. 2d 783 (Fla. 2d DCA 1983), and State v. King, 435 So. 2d 370 (Fla. 2d DCA 1983). These cases uphold the constitutionality of section 817.-563, Florida Statutes (1981). Therefore, the motions to dismiss were improperly granted.
REVERSED and REMANDED with instructions to reinstate the informations herein and for further proceedings.
HOBSON, A.C.J., and CAMPBELL, J., concur.
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Maske v. State, 463 So. 2d 1146 (Fla. 1985)…PER CURIAM. The decision of the district court of appeal is approved on the authority of State v. Bussey, 463 So. 2d 1141, 446 So. 2d 1091 (Fla.1985). It is so ordered. BOYD, C.J., and OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur. ADKINS, J., dissents.…
Authorities Cited
- M.P. v. State, 430 So. 2d 523 (Fla. 2d DCA 1983)
- 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)
- Agramonte v. Aviles, 435 So. 2d 370 (Fla. 4th DCA 1983)
- State v. Growden, 437 So. 2d 783 (Fla. 2d DCA 1983)