WEIL S. KING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Weil King, a licensed practitioner, was convicted of ten counts of bad faith delivery of narcotics by prescription in violation of Florida's Comprehensive Drug Abuse Prevention and Control Act. King appealed on the ground that the information failed to allege his status as a licensed practitioner as an essential element of the offense. The court affirmed, holding that the practitioner requirement is an exception to the general prohibition on drug delivery, not a separate element that must be alleged in the charging document.
The court held that the practitioner requirement is an exception to the prohibition on drug delivery under Florida Statutes § 893.05, not a separate element of the offense that must be alleged in the information. The information adequately charged a violation of § 893.13 by alleging unlawful delivery of a controlled substance, and the reference to bad faith delivery in the information served to alert King to the available defense without requiring express negation.
[1] An information charging a violation of a statute need not negative an exception to the offense, as the exception is a defense that must be raised by the defendant.
[2] An error in citing the statute violated in an information does not require reversal unless the error prejudices the accused.
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Join FLexlaw to unlock all legal intelligence“A practitioner, in good faith and in the course of his professional practice only, may prescribe, administer, dispense, mix, or otherwise prepare a controlled substance”
Establishes the statutory exception that permits licensed practitioners to lawfully deliver controlled substances under specific conditions
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Join FLexlaw to unlock all legal intelligenceKing, a licensed practitioner (N.D.), delivered methaqualone to Manchinco Hudson using written prescriptions that were not issued in good faith and no…
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BOARDMAN, Judge.
Appellant/defendant brings this timely appeal from a judgment of guilty on each of ten counts of bad faith delivery of narcotics by a prescription. He was sentenced to serve five years on each count in the state penitentiary, sentences to run consecutively.
• Appellant was charged by information with violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, Chapter 893, Florida Statutes. Each count charged a separate delivery of a controlled substance:
that WEIL S. KING, N.D. ... did unlawfully deliver a drug substance controlled by Chapter 893 of the Florida Statutes, to-wit: [sic] METHAQUA-LONE, to MANCHINCO HUDSON, by use of a written order for said drug substance not issued in good faith and in the course of his professional practice. . [emphasis supplied].
Appellant’s sole point on appeal is that an essential element of the offense is that the defendant is a licensed practitioner, which must be alleged and proved. We hold that the information, charging the appellant with violation of Chapter 893, does allege the “essential facts constituting the offense charged.” RCrP 3.140(d)(1). The statute under examination states in part:
A practitioner, in good faith and in the course of his professional practice only, may prescribe, administer, dispense, mix, or otherwise prepare a controlled substance .... [Fla.Stat. § 893.05(1)].
**
Except as authorized by this chapter and chapter 500, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.
[Fla.Stat. § 893.13(l)(a)]. The language in the information that the unlawful act was not done in good faith and was done in the course of his professional practice is mere surplusage. The critical language is “unlawfully deliver a drug substance controlled by Chapter 893” which tracks § 893.13 and certainly 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 information charging the offense. Pope v. State, supra; RCrP 3.140(k)(4); 17 Fla.Jur., Indictments and Informations § 60 (1958, Supp.1976).
We note that in this case the heading of the amended information shows that each count is entitled “BAD FAITH DELIVERY OF A NARCOTIC BY A PRESCRIPTION FS 893.05.” We do not believe that this description of the offense would “mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.” RCrP 3.140(o). Where the information clearly charges an offense a mere error in the citation of the statute violated does not require reversal unless the error would prejudice the accused. Youngker v. State, Fla.App.4th, 1968, 215 So. 2d 318.
The circumstantial and direct evidence adduced at trial proved beyond a reasonable doubt that appellant was guilty of unlawful delivery of narcotics by writing prescriptions in bad faith. The language in the information, which we regard as being surplusage, served to advise the appellant of a defense available to him, of which we cannot conceive that counsel for appellant was not fully cognizant.
AFFIRMED.
HOBSON, Acting C. J., and SCHEB, J., concur.
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Jordan v. State, 728 So. 2d 748 (Fla. 3d DCA 1998)…osely v. State, 688 So. 2d 999, 999-1000 (Fla. 2d DCA 1997); Sanders v. State, 386 So. 2d 256, 257 (Fla. 5th DCA 1980); Wood v. State, 354 So. 2d 134, 135 (Fla. 1st DCA 1978); Tukes v. State, 346 So. 2d 1056, 1056 (Fla. 1st DCA 1977); King v. State, 336 So. 2d 1200, 1202 (Fla. 2d DCA 1976).4 The fact that there was a nonprejudicial error in the statutory citation, rather than an entire absence of an appropriate charge, distinguishes the present case from Thornton v. State, 679 So. 2d 871 (Fla. 4th DCA 1996).…
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Vileta v. State, 454 So. 2d 792 (Fla. 2d DCA 1984)…was being charged with armed burglary, a violation of section 810.02(2), and no prejudice resulted to defendant due to the incorrect citation. See Wood v. State, 354 So. 2d 134 (Fla. 1st DCA), cert. denied, 361 So. 2d 836 (Fla.1978); King v. State, 336 So. 2d 1200 (Fla. 2d DCA 1976), cert. denied, 345 So. 2d 424 (Fla.), cert. dismissed, 434 U.S. 802, 98 S.Ct. 30, 54 L.Ed.2d 60 (1977). . The guidelines were subsequently amended on May 8, 1984. The Florida Bar: Amendment to Rules of Criminal Procedure (3.701,…
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Sanders v. State, 386 So. 2d 256 (Fla. 5th DCA 1980)…that the indictment wholly failed to allege a crime, and there is no showing that appellant was misled to his prejudice. Sinclair v. State, 46 So. 2d 453 (Fla.1950); Selley v. State, Case No. 78-115/T4-44, Fla. 5th DCA, May 28, 1980; King v. State, 336 So. 2d 1200 (Fla. 2d DCA 1976), cert. dismissed, 434 U.S. 802, 98 S.Ct. 30, 54 L.Ed.2d 60 (1977). By the language of appellant’s pro se motion previously quoted here, it is obvious that he contends that the maximum sentence he could have received was fifteen y…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972)
- Youngker v. State, 215 So. 2d 318 (Fla. 4th DCA 1968)
- State v. Pope, 283 So. 2d 99 (Fla. 1973)
- State v. Vinson, 298 So. 2d 505 (Fla. 2d DCA 1974)
- Cortina v. State, 135 Fla. 268 (Fla. 1938)