JOHN ADDERLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Adderly appeals a conviction for possession with intent to sell counterfeit controlled substance under Florida Statute § 831.31. The court reversed, holding that the statute requires false identification by container or labeling, and a plain, unmarked plastic bag does not constitute such identification.
The court held that § 831.31 does not apply because the plain plastic bag does not constitute a false identification of the substance as required by the statute. A nondescript, unmarked plastic bag is insufficient to satisfy the container or labeling requirement.
[1] A "counterfeit controlled substance" under section 831.31, Florida Statutes, requires that the substance or its container or labeling bear an unauthorized trademark, trad…
[2] Possession of a substance in a clear, unmarked, and unlabeled plastic bag does not, by itself, constitute a violation of the counterfeit controlled substance statute.
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Establishes the statutory definition requiring false identification by container or labeling
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Join FLexlaw to unlock all legal intelligenceAdderly was arrested while in possession of eight rocks of fake crack cocaine contained in a clear, unmarked, and unlabeled plastic bag. He was charge…
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WOLF, Judge.
This is an appeal of an order denying the appellant’s motion to dismiss. The appellant contends that section 831.31, Florida Statutes (1989), under which he was charged, does not apply to an act of posses sion of cocaine in an unmarked, clear, plastic bag. We agree and reverse the defendant’s conviction.
Section 831.31 states:
(2) For purposes of this section, “counterfeit controlled substance” means:
(a) A controlled substance named or described in s. 893.03 which, or the container or labeling of which, without authorization bears the trademark, trade name, or other identifying mark, imprint, or number, or any likeness thereof, of a manufacturer other than the person who in fact manufactured the controlled substance; or (b) Any substance which is falsely identified by its container or labeling as a controlled substance named or described in s. 893.03.
The appellant was arrested with a clear plastic bag containing eight rocks of fake crack. He was subsequently charged with possession with intent to sell a counterfeit controlled substance in violation of the above statute. In his motion to dismiss, the appellant alleged that the statute does not apply because it defines controlled substances as being identified by the container or the labeling. The plastic bag which the defendant was carrying was nondescript, unmarked, and unlabeled. The sole issue before the trial judge was whether or not the fact that the substance was contained in a plastic bag sufficiently identified the substance as crack cocaine within the meaning of the counterfeit controlled substance statute.
A similar factual situation was presented' in Twinn v. State, 442 So. 2d 286 (Fla. 3rd DCA 1983). The defendant in Twinn was arrested while possessing a white powder, which was not cocaine, in clear plastic bags. The appellate court reversed, finding that placing the white substance in a plastic bag is not sufficient to qualify as an act of mislabeling.
We find that the trial court’s application of section 831.31, Florida Statutes, exceeded the intended scope of the statute. For that reason, we reverse with instructions for the trial court to enter an order granting the appellant’s motion to dismiss.
JOANOS and BARFIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ishmael D. Damen v. State, 793 So. 2d 106 (Fla. 2d DCA 2001)…requires a false label while the second requires the bearer to falsely identify the substance. The mere packaging of eight pieces of fake rock cocaine in a clear plastic bag, without more, has been held not to violate the statute. Adderly v. State, 571 So. 2d 557 (Fla. 1st DCA 1990). The case of Durr v. State, 583 So. 2d 424 (Fla. 1st DCA 1991), which involved possession of a sandwich bag containing twelve pieces of fake rock cocaine, reached a similar result. In each instance, the First District held that p…
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Durr v. State, 583 So. 2d 424 (Fla. 1st DCA 1991)…arge, alleging that an ordinary plastic sandwich bag did not “falsely identify” its contents as cocaine. The trial court denied the motion, and Durr entered a plea of nolo contendere, reserving the right to appeal that ruling. In Adderly v. State, 571 So. 2d 557 (Fla. 1st DCA 1990), the appellant was arrested with a clear plastic bag, “nondescript, unmarked and unlabeled,” containing 8 rocks of fake cocaine. He moved to dismiss the subsequent charge under 831.31, and the trial court denied the motion. This…
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J.L.F. v. State, 887 So. 2d 432 (Fla. 5th DCA 2004)…(holding that the defendant’s possession of a clear plastic bag containing twelve rocks of what appeared to be cocaine, but was not, did not support a conviction for possession of a counterfeit substance with intent to distribute); Adderly v. State, 571 So. 2d 557 (Fla. 1st DCA 1990) (holding that placing fake crack cocaine in a nondescript, unmarked and unlabeled plastic bag was not sufficient to establish the act of mislabeling under section 831.31). After considering the evidence in the light most favorab…
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- Twinn v. State, 442 So. 2d 286 (Fla. 3d DCA 1983)