STATE OF FLORIDA, PETITIONER,
v.
JOHN BOLEY, RESPONDENT
PER CURIAM.
The petition for writ of certiorari directed to the opinion of the District Court of Appeal, Fourth District, reported at 273 So. 2d 109 (Fla.1973), reflected apparent jurisdiction in this Court. We issued the writ and have considered this case without oral argument. Upon such further consideration of the matter, we have determined that the cited decisions present no direct conflict as required by Fla.Const., art. V, § 3(b)(3), F.S.A. Therefore, the writ of certiorari must be and is hereby discharged.
It is so ordered.
CARLTON, C. J., and ROBERTS, ERVIN, BOYD, McCAIN and DEKLE, JJ., concur. ADKINS, J., concurring specially, in which ROBERTS, J., concurs.
ADKINS, Justice
(concurring specially):
The primary question involved is whether an information charging a violation of Fla.Stat. § 404.15(1), F.S.A., must allege the negative of the misdemeanor exceptions in the statute, that is:
(1) The quantity of marijuana involved;
(2) The consideration for delivery;
(3) That the accused has been previously convicted of a violation of the drug abuse law, in order to charge felonious delivery of cannabis.
In my opinion, the State is not required to negate a statutory exception in an information. See Crooke v. Van Pelt, 76 Fla. 20, 79 So. 166 (Fla.1918); Goff v. State, 60 Fla. 17, 53 So. 327 (1910); State v. Kahler, 232 So. 2d 166 (Fla.1970); Fla. Stat. § 404.13, F.S.A.; Salas v. State, 246 So. 2d 621 (Fla.App.3d, 1971). Therefore, the decision of the District Court of Ap peal is in conflict with the above-cited decisions and should be quashed.
However, I abide by the judgment of this Court in State v. Collins, 276 So. 2d 170 (Fla.1973) and State v. Carr, 283 So. 2d 101 (Fla.1973), and agree to the discharge of the writ.
Cases With Similar Vibessemantic neighbors from the corpus
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Fike v. State, 455 So. 2d 628 (Fla. 5th DCA 1984)…which charges delivery of cannabis without specifying the amount of the cannabis delivered or without alleging that the delivery was for consideration charges only a misdemeanor. Boley v. State, 273 So. 2d 109 (Fla. 4th DCA 1973), cert. discharged, 287 So. 2d 668 (Fla.1973); Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972), cert. discharged, 283 So. 2d 99 (Fla. 1973). On the other hand, the word “sale” by definition means a delivery with consideration and is therefore sufficient in itself to charge a felony.…
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Phillips v. State, 438 So. 2d 886 (Fla. 1st DCA 1983)…376 So. 2d 901 (Fla. 2d DCA 1979); Waters v. State, 354 So. 2d 1277 (Fla. 2d DCA 1978); Dicaprio v. State, 352 So. 2d 78 (Fla. 4th DCA 1977), cert. denied, 353 So. 2d 679 (Fla.1977); Boley v. State, 273 So. 2d 109 (Fla. 4th DCA 1973), cert. denied, 287 So. 2d 668 (Fla.1973); but cf. Peek v. Wainwright, 393 So. 2d 1175 (Fla. 3d DCA 1981). We do not reach the other points urged on this appeal. The judgment and sentence are VACATED. We take note from the state’s brief that the same question is presented in sev…
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Young v. State, 439 So. 2d 306 (Fla. 5th DCA 1983)…ormation which charges delivery of cannabis without specifying the amount of the cannabis delivered or alleging that the delivery was for consideration charges only a misdemeanor. Boley v. State, 273 So. 2d 109 (Fla. 4th DCA 1973), cert. discharged, 287 So. 2d 668 (Fla.1973); Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972), cert. discharged, 283 So. 2d 99 (Fla. 1973). On the other hand, the word “sale” by definition means a delivery with consideration and is therefore sufficient in itself to charge a felony.…
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
- State v. Kahler, 232 So. 2d 166 (Fla. 1970)
- Crooke v. Van Pelt, 76 Fla. 20 (Fla. 1918)
- Salas v. State, 246 So. 2d 621 (Fla. 3d DCA 1971)
- Boley v. State, 273 So. 2d 109 (Fla. 4th DCA 1973)
- Miller v. State, 276 So. 2d 170 (Fla. 1973)
- Goff v. State, 60 Fla. 17 (Fla. 1910)
- State v. Carr, 283 So. 2d 101 (Fla. 1973)