F. J. CORTINA
v.
STATE
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F. J. Cortina appeals his conviction for violating Florida's narcotic drug laws, challenging the sufficiency of the four-count information against him. The Florida Supreme Court affirms, holding that the information adequately alleged the statutory violations and that the combination of descriptive terms regarding drug disposal is not duplicitous.
The court held that the information was sufficiently specific and not duplicitous. The defendant, if he qualified for statutory exemptions for lawful drug dispensation, bore the burden of presenting such a defense rather than requiring the prosecution to negate exemptions in the information. The combination of descriptive terms regarding drug disposal (sell, barter, exchange, give away, otherwise dispose) does not render a charge duplicitous.
“Section 3397 (3) prohibits the manufacture, possession, control, sale, prescription, administering, dispensing or compounding of any narcotic drug, except as authorized by law.”
Establishes the core statutory prohibition that applies regardless of specific quantity or timing conditions
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Join FLexlaw to unlock all legal intelligenceCortina was convicted under Chapter 16087, Acts of 1933, which prohibited the unauthorized manufacture, possession, sale, and dispensing of narcotic d…
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Plaintiff in error, who was convicted of violation of Chapter 16087, Acts of 1933, claims- that error was committed by the trial court in not quashing the information which contained four counts, identical except for the dates of the alleged offenses.
The allegations are in the following form:
“Albert D. Hubbard, Acting County Solicitor for the County of----------, prosecuting for the State of Florida, in the said County, under oath, information makes that ----------, of the County of__________and State of Florida, on the----------day of----------in the year of our Lord, one thousand nine hundred and thirty-seven, and within two years from the date of the filing of this information, in the County and State aforesaid, did then and there unlawfully and feloniously sell, barter, exchange, give away and otherwise dispose of a narcotic drug, to-wit: morphine, a better and more particular description and amount of said narcotic drug being to the Acting County Solicitor unknown, to__________, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.”
It is insisted that the various counts are fatally defective because: (1) it was not alleged that the amount sold was more than grain; (2) it was not stated that the drug was dispensed within forty-eight consecutive hours; (3.) no statement was made of the knowledge by the defendant that some one would be provided with more than grain of morphine within forty-eight consecutive hours; and (4) in *270each count fit was charged that the product was sold and given away.
Plaintiff in error assumes that the formal charges were based on the part of the Act, Section 3397 (9), paragraph 3, subsection a, Perm. Sup. C. G. L. 1927, Vol. 3, denominated conditions to which certain exemptions ar-e subject.
Section 3397 (3) prohibits the manufacture, possession, control, sale, prescription, administering, dispensing or compounding of any narcotic drug, except as authorized by law.
The following sections set out the circumstances under which such drugs may be lawfully dispensed by wholesale dealers, apothecaries, physicians, dentists, veterinarians and those who by reason of training and the positions they occupy are fitted to use narcotics for good as distinguished from those who might use them for evil.
Section 3397 (9), supra, provides that the law shall not apply to those prescribing, administering, dispensing or selling at retail any medicinal preparation that contains a maximum of certain drugs or preparations for external use. Then it casts about these exemptions conditions which if violated by those exempted will make them amenable to the .law. As an illustration of the general intent of the statute, we mention here paragraph 3 of Section 3397 (8), placing the duty on any person who has obtained the forbidden drug for a patient to return the unused portion to the one prescribing it.
We cannot agree with the plaintiff in error that he has been brought to account for a violation of a condition restricting the dispensation of medicinal preparations and ointments for external use. If he was in position to take advantage of the exceptions in the act the burden was his to present such a defense. Sec. 19 of Chapter 16087, supra. This seems to dispose of the first three objections to the information, adversely to contention of pliintiff in error.
*271The remaining one is the combination of the words “sell, barter, exchange, give away and otherwise dispose of,” which it is urged is duplicitous.
This is not sound and we think it only necessary to cite the ruling of this Court in Strobhar v. State, 55 Fla. 167, 47 South. Rep. 4, as authority to overrule plaintiff in error’s fifth objection.
The judgment of the Criminal Court of Record is affirmed.
Terrell, C. J., and Buford, J., concur.
Whitfield, P. J„ and Brown and Chapman, J. J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Kahler, 232 So. 2d 166 (Fla. 1970)…ter such drug by any person not exempted under this section shall be prima facie evidence that such possession is unlawful.” .226 So. 2d 399 (Fla.1969). . Id. at 401. . See e. g., Gurr v. State, 150 Fla. 65, 7 So. 2d 590 (1942); Cortina v. State, 135 Fla. 268, 184 So. 838 (1938); Buchanan v. State ex rel. Hunt, 171 So. 2d 186 (Fla.App.3rd 1965); Benitez v. State, 172 So. 2d 520 (Fla.App.2nd 1965). . 333 F. 2d 210, rehearing 342 F. 2d 408 (C.A.9 1963), cert. denied 382 U.S. 829, 86 S.Ct. 63, 15 L.Ed.2d 7…
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Weil S. King v. State, 336 So. 2d 1200 (Fla. 2d DCA 1976)…ainly alleges a violation of the statute. Cf. State v. Vinson, Fla.App.2d, 1974, 298 So. 2d 505. It is clear that § 893.05 is an exception to the prohibitions of § 893.13 and does not constitute a separate violation of Chapter 893. Cortina v. State, 135 Fla. 268, 184 So. 838 (1938); 25 Am.Jur.2d, Drugs, Narcotics, and Poisons § 41 (1966, Supp.1976); Cf. Pope v. State, Fla.App.2d, 1972, 268 So. 2d 173, cert. den., Fla.1973, 283 So. 2d 99. A defense or an exception to an offense need not be negatived in the i…
Authorities Cited
- Strobhar v. State, 55 Fla. 167 (Fla. 1908)