District Court of Appeal of Florida, Fifth District.
*881 Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellant.
James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellees John Eummel Bright and Arthur Davis.
FRANK D. UPCHURCH, Jr., Judge.
The state appeals from orders dismissing the informations against defendants Arthur Davis and John Bright on the basis that the statute under which they were charged, section 817.563, Florida Statutes (1981)[1], is unconstitutional. Since they involve the same issue, the cases have been consolidated on appeal.
The court below held that section 817.563 is unconstitutional because it makes the sale of a substance illegal regardless of whether it is dangerous to public health or safety, or whether it is or is not controlled, or whether the seller knew what it was, or whether the seller intended to sell a controlled substance, and regardless of whether the buyer knew what he was buying. The court also held that the statute was overbroad, in that it would, for example, include mistakes and negligence of pharmacists.
We disagree with the trial court's interpretation of section 817.563. We agree and adopt the reasoning set forth in M.P. v. State, 430 So. 2d 523 (Fla. 2d DCA 1983), where our colleagues in the Second District held that section 817.563 is constitutional.
REVERSED and REMANDED.
DAUKSCH and COWART, JJ., concur.
DAUKSCH, Judge.
In their motion for rehearing appellees correctly point out that we neglected to certify our decision is in conflict with State v. Bussey, 444 So. 2d 63 (Fla. 4th DCA 1984). We so certify.
FRANK D. UPCHURCH, Jr., and COWART, JJ., concur.
[1] Section 817.563, Florida Statutes (1981), provides as follows:
It is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in s. 893.03 and then sell to such person any other substance in lieu of such controlled substance. Any person who violates this section with respect to:
(1) A controlled substance named or described in s. 893.03(1), (2), (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) A controlled substance named or described in s. 893.03(5) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
