RETHA SUE WHITFIELD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1993-05-17
No. 91-2331
ZEHMER, BARFIELD and MINER, JJ., concur.
620 So. 2d 1027 Florida District Court of Appeal, First District (1993) Positive Treatment
Cited by 2 cases

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Synopsis

Retha Sue Whitfield appealed her convictions on 132 offenses. The court reversed her convictions on 15 drug offenses due to statute of limitations violations and insufficient evidence that the substance obtained was a controlled substance listed in the statute, while affirming all other convictions.


Holding

The court reversed Whitfield's convictions on counts 1 through 13 (13 offenses) because the state failed to establish that prosecution was commenced within the statute of limitations period. The court also reversed her convictions on counts 25 and 32 (2 offenses) because the evidence did not establish that she obtained dextropropoxyphene, the controlled substance listed in the statute, only that she obtained Darvocet.


Headnotes

[1] A prosecution for a third-degree felony is barred if the information is not filed within the applicable three-year statute of limitations, absent facts demonstrating toll…

[2] A conviction for unlawfully acquiring a controlled substance requires proof that the substance obtained is listed in the relevant statute or is a compound containing the…

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Key Quotes

“appellant's convictions for these offenses must be reversed as the state failed to establish in the information that the prosecution was commenced within the limitations period”

Establishes that the state bears the burden of showing compliance with the statute of limitations in the information itself

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Facts & Procedural History

Whitfield was charged with 132 offenses, including unlawfully acquiring controlled substances between January 20 and December 1, 1986. The amended inf…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Raising several issues on appeal, Retha Sue Whitfield seeks review of her judgments of conviction and the sentences imposed for 132 offenses. For the reasons set forth below, we reverse appellant’s convictions on 15 drug offenses. We affirm the convictions on all other offenses without elaboration.

In counts 1 through 13 of the amended information, appellant was charged with unlawfully acquiring or obtaining controlled substances “by misrepresentation, fraud, forgery, deception, or sub terfuge,” contrary to section 893.13(3)(a)l, Florida Statutes (1985).

The offenses were alleged to have occurred between January 20 and December 1, 1986, and were subject to the three-year limitations period applicable to third degree felonies. See § 775.-15(2)(b), Fla.Stat. The amended information first charging these offenses was not filed until December 6,1989, and alleged no facts indicating that the statute of limitations was tolled for the offenses before prosecution commenced. Appellant’s convictions for these offenses must be reversed as the state failed to establish in the information that the prosecution was commenced within the limitations period. See Sturdivan v. State, 419 So. 2d 300 (Fla.1982).

In counts 25 and 32, appellant was charged with unlawfully acquiring or obtaining “a controlled substance, to-wit: Darvocet, also known as Propoxyphene Napsylate” contrary to section 893.-13(3)(a)l, Florida Statutes. The appellant unsuccessfully moved for judgments of acquittal, arguing that no evidence established that she acquired or obtained a controlled substance listed in section 893.03, Florida Statutes.

The trial court should have granted the motion. Although the evidence established that appellant obtained “Darvocet,” which was variously referred to as “propoxyphene anthrocet” and “propoxyphene napsy/apap,” nothing in the record indicates that appellant unlawfully obtained “dextropropoxyphene,” the controlled substance listed in the applicable statute. See § 893.03(4)(o), Fla.Stat. (1987).

Nor was there any evidence that the charged substance was a compound that contained the listed controlled substance, dextropropoxyphene. Cf. State v. Sobel, 363 So. 2d 324 (Fla.1978) (proof that the defendant possessed lysergic acid diethylamide was sufficient to support conviction for charged offense of possession of lysergic acid where testimony established that diethylamide contained lysergic acid and could be reduced to the prohibited substance).

Accordingly, we are obliged to reverse appellant’s convictions on counts 1 through 13, 25 and 32, and remand the case for resentencing.

ZEHMER, BARFIELD and MINER, JJ., concur.


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Citator

Cited By

  • State v. Robbins, 780 So. 2d 89 (Fla. 2d DCA 2000)
    …tute of limitations. See § 775.15(5), Fla. Stat. (1989). Failure to state the reason the offense is not time barred within the charging document has been held to be error. See, e.g., Sturdivan v. State, 419 So. 2d 800 (Fla.1982); Whitfield v. State, 620 So. 2d 1027 (Fla. 1st DCA 1993). In Sturdivan, the Florida Supreme Court recognized that failure to supply information in a charging document that an offense is not time barred is error. See Sturdivan, 419 So. 2d at 302. However, it is a defense that may be wa…

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