Opinion
No. 82-2276.
February 3, 1984. Rehearing Denied March 19, 1984.
Appeal from the Circuit Court, Hillsborough County, Fred Woods, J.
Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellant.
Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellees.
The state appeals from the granting of the appellees' motions to dismiss. We reverse and remand with instructions.
In April 1982, the appellees were charged by information with agreeing, consenting or offering to unlawfully sell a controlled substance (methaqualone), and then selling another substance in lieu of the controlled substance in violation of section 817.563(1), Florida Statutes (1981). Subsequently, the appellees filed motions to dismiss the information asserting that the statute was unconstitutional on its face and in application. The trial judge granted the motions to dismiss adopting in part the rationale and holding of the trial court in State v. Thomas, (Fla. 4th Cir. Ct. 1982).
At the time he ruled, the trial judge did not have the benefit of the teachings contained in the appellate decision of State v. Thomas, 428 So.2d 327 (Fla. 1st DCA), petition for review denied, 436 So.2d 101 (Fla. 1983), nor the decision in M.P. v. State, 430 So.2d 523 (Fla. 2d DCA 1983). See also State v. Growden, 437 So.2d 783 (Fla. 2d DCA 1983), and State v. King, 435 So.2d 370 (Fla. 2d DCA 1983). These cases uphold the constitutionality of section 817.563, Florida Statutes (1981). Therefore, the motions to dismiss were improperly granted.
REVERSED and REMANDED with instructions to reinstate the informations herein and for further proceedings.
HOBSON, A.C.J., and CAMPBELL, J., concur.