STATE OF FLORIDA, APPELLANT,
v.
JOHN EUMMEL BRIGHT, APPELLEE; STATE OF FLORIDA, APPELLANT, V. ARTHUR DAVIS, APPELLEE
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The State appealed orders dismissing charges under Florida Statute section 817.563, which criminalizes selling a substance in place of a promised controlled substance. The Fifth District Court of Appeal reversed the trial court's finding that the statute was unconstitutionally overbroad, adopting reasoning from a Second District precedent upholding the statute's constitutionality.
Section 817.563 is constitutional and does not violate due process or overbreadth doctrines. The statute is not unconstitutionally vague or overbroad as applied to the defendants' conduct.
[1] A statute making it unlawful to offer to sell a controlled substance and then sell a different substance in its place is constitutional.
[2] A statute criminalizing the sale of a substitute substance for a controlled substance is not unconstitutional for failing to require proof of danger to public health or s…
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Join FLexlaw to unlock all legal intelligence“section 817.563 is unconstitutional because it makes the sale of a substance illegal regardless of whether it is dangerous to public health or safety, or whether it is or is not controlled, or whether the seller knew what it was, or whether the seller intended to sell a controlled substance, and regardless of whether the buyer knew what he was buying”
The trial court's rationale for dismissing the charges, which the appellate court rejected
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Join FLexlaw to unlock all legal intelligenceJohn Bright and Arthur Davis were charged under section 817.563, Florida Statutes (1981), which prohibits agreeing to unlawfully sell a controlled sub…
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FRANK D. UPCHURCH, Jr., Judge.
The state appeals from orders dismissing the informations against defendants Arthur Davis and John Bright on the basis that the statute under which they were charged, section 817.563, Florida Statutes (1981)1, is unconstitutional. Since they involve the same issue, the casfes have been consolidated on appeal.
The court below held that section 817.563 is unconstitutional because it makes the sale of a substance illegal regardless of whether it is dangerous to public health or safety, or whether it is or is not controlled, or whether the seller knew what it was, or whether the seller intended to sell a controlled substance, and regardless of whether the buyer knew what he was buying. The court also held that the statute was overbroad, in that it would, for example, include mistakes and negligence of pharmacists.
We disagree with the trial court’s interpretation of section 817.563. We agree and adopt the reasoning set forth in M.P. v. State, 430 So. 2d 523 (Fla. 2d DCA 1983), where our colleagues in the Second District held that section 817.563 is constitutional.
REVERSED and REMANDED.
DAUKSCH and COWART, JJ„ concur. . Section 817.563, Florida Statutes (1981), provides as follows:
It is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in s. 893.03 and then sell to such person any other substance in lieu of such controlled substance. Any person who violates this section with respect to:
(1) A controlled substance named or described in s. 893.03(1), (2), (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) A controlled substance named or described in s. 893.03(5) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
DAUKSCH, Judge.
In their motion for rehearing appellees correctly point out that we neglected to certify our decision is in conflict with State v. Bussey, 444 So. 2d 63 (Fla. 4th DCA 1984). We so certify.
FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.
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Bright v. State, 463 So. 2d 1147 (Fla. 1985)…PER CURIAM. The decision of the district court of appeal, reported as State v. Bright, 451 So. 2d 880 (Fla. 5th DCA 1984), is approved on the authority of State v. Bussey, 463 So. 2d 1141 (Fla.1985). It is so ordered. BOYD, C.J., and OVERTON, ALDERMAN, McDonald, EHRLICH and SHAW, JJ., concur. ADKINS, J., dissents.…
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Brown v. State, 456 So. 2d 1335 (Fla. 5th DCA 1984)…PER CURIAM. Section 817.563, Florida Statutes (1981), prohibiting the sale of a counterfeit substance in lieu of a controlled substance, is constitutional. Todd v. State, 455 So. 2d 1154 (Fla. 5th DCA 1984); State v. Bright, 451 So. 2d 880 (Fla. 5th DCA 1984); 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 370 (Fla. 2d DCA 1983); [*1336] M.P. v. State, 430 So. 2d 523 (Fla. 2d DCA 1983); State v. Thomas…
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Todd v. State, 455 So. 2d 1154 (Fla. 5th DCA 1984)…PER CURIAM. Affirmed on the authority of State v. Bright, 451 So. 2d 880 (Fla. 5th DCA 1984). Contra, State v. Bussey, 444 So. 2d 63 (Fla. 4th DCA 1984). COBB, C.J., and DAUKSCH and CO-WART, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- M.P. v. State, 430 So. 2d 523 (Fla. 2d DCA 1983)
- State v. Bussey, 444 So. 2d 63 (Fla. 4th DCA 1984)