Opinion
No. 82-2327.
March 21, 1984.
Appeal from the Circuit Court, Broward County, Russell E. Seay, Jr., J.
Jim Smith, Atty. Gen., Tallahassee, and Joy Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellee.
REVERSED. We believe the trial court erred in ruling that the provisions of section 831.31, Florida Statutes (1981), were facially unconstitutional and dismissing the charges filed against the appellant for allegedly violating the statute.
831.31 Counterfeit controlled substance; sale, manufacture, delivery, or possession with intent to sell, manufacture, or deliver. —
(1) It is unlawful for any person to sell, manufacture, or deliver, or to possess with intent to sell, manufacture, or deliver, a counterfeit controlled substance. Any person who violates this subsection with respect to:
(a) 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.
(b) 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.
(2) For purposes of this section, "counterfeit controlled substance" means:
(a) A controlled substance named or described in s. 893.03 which, or the container or labeling of which, without authorization bears the trademark, trade name, or other identifying mark, imprint, or number, or any likeness thereof, of a manufacturer other than the person who in fact manufactured the controlled substance; or
(b) Any substance which is falsely identified by its container or labeling as a controlled substance named or described in s. 893.03.
The appellant contends that the statute is defective because it fails to specifically provide the element of intent to defraud, a defect we found fatal in reviewing another statute in State v. Bussey, 444 So.2d 63 (Fla. 4th DCA 1984). We cannot agree that the lack of such element renders the statute void. Section 831.31, as noted in its title, is directed to the problem of the distribution of counterfeit controlled substances, i.e., substances that may be identified as one thing but are really another. We agree that the statute does not make criminal the innocent possession of a counterfeit controlled substance, i.e., the possession by one who has no knowledge that the substance is counterfeit and who is otherwise lawfully entitled to possess what is apparently a valid controlled substance. Section 831.31 is also unlike section 893.13(2)(a)7, Florida Statutes (1981), which prohibits one from keeping a lawfully dispensed controlled substance in any container other than the one in which it was originally dispensed. See State v. Walker, 444 So.2d 1137 (Fla. 2d DCA 1984).
In conclusion, we uphold the facial constitutionality of section 831.31 and reverse and remand this cause for further proceedings in accord herewith.
ANSTEAD, C.J., and BERANEK and HURLEY, JJ., concur.