Arrestable Offenses / Crimes under Fla. Stat. 817.563
S817.563 1 - DRUGS-MISBRANDED - SELL IN LIEU OF SCHED I II III IV CONTROL SUBS - F: T
S817.563 - DRUGS-MISBRANDED - RENUMBERED. SEE REC # 6989 - F: T
S817.563 - DRUGS-MISBRANDED - RENUMBERED. SEE REC # 6990 - M: S
CopyCited 58 times | Published | Court of Appeals for the Eleventh Circuit | 1996 U.S. App. LEXIS 19010
...§ 841 convictions of Hutchinson, Griffin, Albert Brown, Kenyatta Brown, and Kenya Brown on double jeopardy grounds and remand for resentencing under 21 U.S.C. § 860 ; (2) affirm the district court's holding that Hutchinson's prior conviction under Florida Statutes § 817.563 constitutes a predicate controlled substance offense for career offender sentencing purposes; and (3) vacate the district court's findings as to the quantity of drugs attributable to Hutchinson, Albert Brown, and Kenyatta Brown for sentencing purposes and remand for further factual findings on that issue....
...the conviction, in determining if a prior conviction is a controlled substance offense under § 4B1.2(2)." United States v. Lipsey,
40 F.3d 1200, 1201 (11th Cir.1994). 15 In 1990, Hutchinson pleaded nolo contendere to a violation of Florida Statutes §
817.563....
...893.03; sale of substance in lieu thereof 17 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. 18 Fla.Stat.Ann. §
817.563 (West 1994) (emphasis added). 3 Looking at the elements of the convicted offense, we conclude that the district court properly held that Hutchinson's conviction under Florida Statutes §
817.563 constitutes a predicate "controlled substance offense" for career offender sentencing purposes....
...ng Hutchinson as a career offender the court counted a 1990 Florida felony conviction as a predicate "controlled substance offense" under U.S.S.G. § 4B1.1. In the Florida case Hutchinson had pleaded nolo contendere to a violation of Florida statute § 817.563, which appears in Chapter 817 of the Florida Statutes Annotated titled "Fraudulent Practices," in Part I, thereof, titled "False Practices and Frauds, Generally." 37 Sec. 817.563....
...nterfeit substance" offense, is a "controlled substance offense." And it appears to reach that conclusion by "looking at the elements of the convicted offense," as we must do according to U.S. v. Lipsey,
40 F.3d 1200, 1201 (11th Cir.1994). Florida's §
817.563 does make it unlawful to offer to sell a controlled substance and then sell some other substance "in lieu of such controlled substance." But the elements of a conviction under §
817.563 do not support the "look at the elements" approach....
CopyCited 37 times | Published | Supreme Court of Florida
...We find the district court's rulings erroneous and therefore reverse. The state accused appellee Bussey of agreeing, consenting, or offering to sell heroin, a controlled substance, and then selling another substance, a compound of caffeine and methapyrilene, in lieu of heroin, in violation of section 817.563, Florida Statutes (1981)....
...The trial court held the statute unconstitutional and dismissed the charge. The state appealed and the district court affirmed the ruling of the trial court. State v. Bussey,
444 So.2d 63 (Fla. 4th DCA 1984). Appellees Gaines and Dotson were also charged separately with the offense proscribed by section
817.563....
...The trial courts denied the motions. Both men were convicted. However, on appeal the convictions were reversed on the authority of State v. Bussey. Dotson v. State,
446 So.2d 1084 (Fla. 4th DCA 1984); Gaines v. State,
444 So.2d 553 (Fla. 4th DCA 1984). Section
817.563 provides: 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....
...inst fraud and that therefore proof of specific intent is necessary under historical common-law principles now considered part of the concept of due process. We do not agree that the statute is aimed at preventing fraud. The legislature, in enacting section 817.563, was not concerned with protecting persons illegally purchasing controlled substances from the danger of being sold bogus controlled substances....
...f Florida Statutes is not determinative on the issue of legislative intent, though it may be persuasive in certain circumstances. Where there is a question, established principles of statutory construction must be utilized. It seems clear to us that section 817.563 is not a fraud statute; it is not designed to protect illegal drug users and dealers from fraudulent representations by other dealers....
...However, the Second District in M.P. v. State, supra, [
430 So.2d 523 (Fla. 2d DCA 1983)] has held that there is no necessity of any intent to actually sell a controlled substance. The First District held in Thomas [ State v. Thomas,
428 So.2d 327 (Fla. 1st DCA 1983)] that Section
817.563 only applies when the defendant actually knows that the substance sold is a legal substance and not when he has a mistaken belief that it is an illegal substance....
...deemed a violation; that is, whether ordinary people will understand what the statute requires or forbids, measured by common understanding and practice. Zachary v. State,
269 So.2d 669 (Fla. 1972); Brock v. Hardie,
114 Fla. 670,
154 So. 690 (1934). Section
817.563 defines an offense having two constituent factual requirements that must be shown....
...The second is for the person to then provide "any other substance in lieu of such controlled substance." These two requirements are based on a reading of the plain language of the statute and are set forth with sufficient clarity to withstand constitutional scrutiny. The offense defined by section 817.563 is designated as a third-degree felony or a second-degree misdemeanor depending upon the controlled substance "with respect to" which the violation occurs....
...tual legislative impetus: where drug enforcement agents plan a controlled purchase in order to prosecute the suppliers, all their efforts are in vain when the drugs supplied turn out not to be controlled substances.
444 So.2d at 65. We conclude that section
817.563 is a drug abuse law rather than a fraud law; that a general intent is required and is all that need be required; that neither the proscriptive parts nor the penalty provisions of the law are vague; and that the law is rationally related to a legitimate state purpose....
...64,967 and 64,968 are remanded with directions to affirm the orders denying the motions to dismiss. It is so ordered. OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur. ADKINS, J., dissents. NOTES [1] We use the term "bogus drugs" as a short-term way of referring to the substances supplied in violation of section 817.563....
...ibits the sale, manufacture, or delivery of "counterfeit controlled substances." That statute is directed at the false or unauthorized labelling of controlled substances that are available for use by medical prescription or other authorization. Both section
817.563 and section
831.31 were enacted as parts of chapter 81-53, Laws of Florida....
CopyCited 16 times | Published | Florida 2nd District Court of Appeal
...Gen., Tampa, for appellee. RYDER, Chief Judge. Lindsey appeals the judgment and sentence on three counts for the sale of phenobarbital, *486 section
893.13(1)(a)(2), Florida Statutes (1981), and one count for the sale of substance in lieu of a controlled substance, section
817.563, Florida Statutes (1981). The appellant has attacked section
817.563 as being unconstitutionally vague as a fraud statute and an improper exercise of police power. He argues that in State v. Bussey,
444 So.2d 63 (Fla. 4th DCA 1984), the Fourth District ruled that section
817.563 is unconstitutional, and that this court should follow suit. In M.P. v. State,
430 So.2d 523 (Fla. 2d DCA 1983), this court considered this same issue and held that section
817.563 was constitutional....
CopyCited 14 times | Published | Supreme Court of Florida | 1993 WL 209170
...State,
593 So.2d 554 (Fla. 5th DCA 1992), which we accepted for review. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.; Jollie v. State,
405 So.2d 418 (Fla. 1981). Darrell Mitchell (Mitchell) was convicted of a third-degree felony in violation of section
817.563, Florida Statutes (1989)....
CopyCited 13 times | Published | Florida 5th District Court of Appeal | 1991 WL 175219
...we vacate the conviction and sentence for felony petit theft, and certify the above question to the Florida Supreme Court. Judgment and sentence for felony petit theft VACATED; question CERTIFIED. GOSHORN, C.J., and DIAMANTIS, J., concur. NOTES [1] § 817.563, Fla....
CopyCited 12 times | Published | Florida 4th District Court of Appeal | 1997 WL 149233
...Defendant was arrested as the result of a buy/bust operation wherein Detective Huffman posed as a cab driver and Detective Miller as his passenger. The defense at trial was that defendant had sold the detective two concrete rocks; he had never agreed to sell cocaine nor had he represented the rocks as such. See § 817.563, Fla.Stat....
CopyCited 9 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 717, 2013 WL 5641794, 2013 Fla. LEXIS 2284
...000 to $500,000. See §
893.135(l)(b), (c), (f), Fla. Stat. (2009). It is equally apparent that the Legislature specifically intended to punish the distribution of counterfeit and look-alike substances less harshly. See §
831.31, Fla. Stat. (2009); §
817.563, Fla. Stat. (2009). Under section
817.563: 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. §
817.563, Fla....
...nufacture, or deliver, a counterfeit controlled substance.[ 5 ] §
831.31(1), Fla. Stat. (2009). Violators of these sections may face a range of criminal charges from a second-degree misdemean- or to a third-degree felony. See §
831.31, Fla. Stat.; §
817.563, Fla....
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellant. Louis O. Frost, Jr., Public Defender and James T. Miller, Asst. Public Defender, Jacksonville, for appellees. SHIVERS, Judge. Appellees Thomas and Williams were charged with violations of section
817.563, Fla. Stat. (1981). [1] The State appeals the orders of the trial court granting appellees' motions to dismiss on the ground that section
817.563 is unconstitutional. Appellant argues that the legislature, in defining this crime, may properly dispense with the element of specific intent in regard to a defendant's knowledge of the nature of the substance sold, that section
817.563 does not conflict with State v. Cohen,
409 So.2d 64 (Fla. 1st DCA 1982), and that section
817.563 is a valid exercise of police power by the legislature....
...ported to be hashish but which later turned out to be an uncontrolled substance. Appellant's initial contention that appellees lack standing on the basis of the alleged facts of their cases is without merit. Appellees were charged with violations of section 817.563....
..., i.e., the State must prove beyond a reasonable doubt that the defendant agreed, consented or offered to sell a *330 substance which the defendant knew to be a controlled substance (and then sold an uncontrolled substance in lieu thereof). As such, section 817.563 requires mens rea and is not unconstitutional for lack thereof....
...trolled substance, the defendant must "then sell to such person any other substance in lieu of such controlled substance." The second element of this crime consists of the actual sale of an uncontrolled substance. There is nothing in the language of section 817.563 which evidences any intent on the part of the legislature to require a knowledge of the substance sold as an element of this crime....
...In other words, a defendant's knowledge of the nature of the substance sold is irrelevant if the defendant knowingly offers to sell a controlled substance and then sells an uncontrolled substance in lieu thereof. The trial court also erred in holding that section 817.563 conflicts with the holding of this court in State v....
...bstance does not prevent prosecution for attempt. Appellees contend that, under certain circumstances, the crime of attempted sale of a controlled substance under Cohen will have the identical elements as the crime of sale of counterfeit drugs under section 817.563....
...Appellees reason that the elements of the two crimes would be co-extensive in a situation where the seller of the substance actually believes that it is in fact a controlled substance. Since attempted sale of a controlled substance carries a lesser penalty than a violation of section 817.563, [3] appellees argue that this court should, at least, allow a defendant charged with the violation of 817.563 to raise the affirmative defense of mistake (as to knowledge of the substance sold) and thereby, in essence, admit guilt of the "lesser included offense" of attempted sale of a controlled substance. Thus, violation of section 817.563 would be the appropriate charge when one has sold a substance purported to be a controlled substance when the defendant knows that the substance is really an uncontrolled substance, and attempted sale of a controlled substance would b...
...Even where one of the crimes charged is a lesser included offense of another, the defendant may be charged and convicted of both as long as he is sentenced only for one. State v. Hegstrom,
401 So.2d 1343 (Fla. 1981). The two crimes discussed in the instant case do not have identical elements. As discussed supra, section
817.563 focuses upon the offer to sell....
...ot. Furthermore, the doctrine of lenity has no application in the case at bar. This doctrine is applied only when there is ambiguity concerning the ambit of criminal statutes. United States v. Bass,
404 U.S. 336,
92 S.Ct. 515,
30 L.Ed.2d 488 (1971). Section
817.563 is not ambiguous....
...The clear intent of the legislature is that if one sells a controlled substance he can be charged with violation of section
893.13. If one knowingly offers a controlled substance but sells an uncontrolled substance in lieu thereof, he can be charged with violation of section
817.563. The trial court's finding that the statute was not a valid exercise of the police power is also erroneous. It is clear that the trial court misconceived the legislative intent behind section
817.563....
...When the legislature acts in these areas, the courts may not substitute their judgment for that of the legislature concerning the wisdom of such acts. State v. Yu,
400 So.2d 762 (Fla. 1981), appeal dismissed,
454 U.S. 1134,
102 S.Ct. 988,
71 L.Ed.2d 286 (1982). In light of the foregoing, we hold that section
817.563, *332 Fla....
...[3] For example, under sections
893.13 and
777.04, Fla. Stat. (1981) a person who commits attempted sale of a controlled substance such as cannabis is guilty of a first degree misdemeanor, whereas a person who offers to sell cannabis and sells an uncontrolled substance under section
817.563, Fla....
...1747,
64 L.Ed.2d 381 (1980); Simpson v. United States,
435 U.S. 6,
98 S.Ct. 909,
55 L.Ed.2d 70 (1978). [5] Attempted sale of a controlled substance does not require intent as to the offer to sell, but it does require intent to sell a controlled substance. Cohen, supra . Section
817.563 requires intent as to the offer to sell but does not require intent to actually sell a controlled substance....
CopyCited 6 times | Published | Court of Appeals for the Eleventh Circuit | 1996 WL 403100
...§ 841 convictions of Hutchinson, Griffin, Albert Brown, Kenyatta Brown, and Kenya Brown on double jeopardy grounds and remand for resentencing under 21 U.S.C. § 860 ; (2) affirm the district court’s holding that Hutchinson’s prior conviction under Florida Statutes § 817.563 constitutes a predicate controlled substance offense for career offender sentencing purposes; and (3) vacate the district court’s findings as to the quantity of drags attributable to Hutchinson, Albert Brown, and Kenyatta Brown for sentencing purposes and remand for further factual findings on that issue....
...the conviction, in determining if a prior conviction is a controlled substance offense under § 4B1.2(2).” United States v. Lipsey,
40 F.3d 1200, 1201 (11th Cir.1994). In 1990, Hutchinson pleaded nolo conten-dere to a violation of Florida Statutes §
817.563....
...893.03; sale of substance in lieu thereof 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. Fla.Stat.Ann. §
817.563 (West 1994) (emphasis added). 3 Looking at the elements of the convicted offense, we conclude that the district court properly held that Hutchinson’s conviction under Florida Statutes §
817.563 constitutes a predicate “controlled substance offense” for career offender sentencing purposes....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal
...Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee. CAMPBELL, Judge. Appellant, a juvenile, was charged by petition for delinquency with three counts of sale of a substance in lieu of a controlled substance in violation of section 817.563, Florida Statutes (1981). Appellant allegedly offered to sell to three different persons Methamphetamine ("speed") but instead sold each of them "fake speed." Appellant moved to dismiss the charges, maintaining that section 817.563 suffered from constitutional infirmities....
...munity control program. Appellant filed a timely notice of appeal, and we affirm. The same issues raised here by appellant were recently argued in State v. Thomas,
428 So.2d 327 (Fla. 1st DCA 1983), in which our colleagues in the First District held section
817.563 to be constitutional. We agree and adopt the reasoning of the court in that case with one exception. While we may be misinterpreting what the court said in Thomas, we are concerned with its statement that section
817.563 requires the state to prove "that the defendant agreed, consented or offered to sell a substance which the defendant knew to be a controlled substance (and then sold an uncontrolled substance in lieu thereof)." Thomas, at 329-330 (emphasis added)....
...Our particular concern is with the emphasized language. We interpret that statement to require that it be proven that the defendant originally intended to sell a controlled substance. If that interpretation is correct, we disagree, for we conclude that persons charged can be guilty of violating section 817.563 even if their intent is from the beginning to sell an uncontrolled substance, and the original "fake" offer to sell a controlled substance is a complete subterfuge....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2002 WL 1971866
...pe of Thomas's alleged transaction with undercover agents had been misplaced. We agree and remand with instructions to reinstate the charges. Thomas was charged with two counts of selling a substance in lieu of a controlled substance in violation of section 817.563, Florida Statutes (2000)....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal
...n his person. Twinn was charged with violating the counterfeit controlled substance provision of the Florida Statutes, §
831.31, Fla. Stat. (1981). Twinn argues, and we agree, that it was inappropriate to charge him under section
831.31 rather than section
817.563, Florida Statutes (1981)....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 3969, 2009 WL 1162777
...r. If Mr. Raines is entitled to any relief at this point, he must seek it from a federal court. In 1989, Mr. Raines sold counterfeit crack cocaine to an undercover police officer. Accordingly, he was charged with the third-degree felony described in section 817.563(1), Florida Statutes (1989)....
CopyCited 4 times | Published | Florida 4th District Court of Appeal
...Gen., West Palm Beach, for appellant. Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellee. BERANEK, Judge. Appellant was charged by information with the sale of a noncontrolled substance in violation of Section 817.563, Florida Statutes (1981), which states as follows: 817.563 Controlled substance named or described in s....
...pts simply have no application in illegal drug transactions. In short, the court held that purchasers of illegal drugs were not entitled to consumer protection under the theft statute. The First District did, however, uphold the constitutionality of Section
817.563 in State v. Thomas,
428 So.2d 327 (Fla. 1st DCA 1983). The Thomas court initially considered the question of scienter as applicable to Section
817.563....
...This statute protects the public from counterfeit drugs even if such drugs are harmless. Carrying it a step further, the Second District Court of Appeal has agreed with the First District Court of Appeal, at least in part, in M.P. v. State,
430 So.2d 523 (Fla. 2d DCA 1983). In this case the Second District found Section
817.563 constitutional but contrary to the First District concluded that there was no requirement of any specific intent contemplated by the statute. Once again, the statute is discussed purely as a drug measure. We conclude that the trial court correctly found Section
817.563 to be unconstitutional....
...nding on which type of illegal substance was originally offered. However, the Second District in M.P. v. State, supra , has held that there is no necessity of any intent to actually sell a controlled substance. The First District held in Thomas that Section 817.563 only applies when the defendant actually knows that the substance sold is a legal substance and not when he has a mistaken belief that it is an illegal substance....
...State, supra , which holds that there need be no intent to ever sell an illegal drug but only an offer to do so. After consideration of the statute and the cases construing it we conclude it is vague and thus constitutionally infirm. In conclusion, we find Section 817.563 to be a fraud statute and as such, it was a violation of due process to prosecute the defendant under the statute which makes no provision for specific intent as to the sale of the uncontrolled substance. As a fraud statute Section 817.563 is not a proper exercise of the police power and is unconstitutionally vague....
...It appears that at least one of the concerns of the legislature was to deal with "rip-offs" in drug transactions, especially those transactions involving undercover officers who might be sold bogus drugs. In addition to the other laws proscribing illegal drug activity, Section 817.563, is designed to deal with this precise form of criminal activity, i.e., "rip-offs." Obviously, any accused who has represented a substance to be one thing, and knowingly substitutes another, has the intent to deceive, and would be in violation of this statute. NOTES [1] In discussing lesser included offenses the Thomas court stated that Section 817.563 is the appropriate charge only when the defendant "knows" that the substance actually sold is an uncontrolled substance....
CopyCited 4 times | Published | Florida 5th District Court of Appeal
...I do not agree with the statement that "it makes no difference whether ... the substance was actually fake." In my opinion it could *515 make a difference because there is a specific statute dealing with the sale (or attempted sale) of a substance in lieu of a controlled substance. § 817.563, Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1994 WL 171599
...Public Defender, Tallahassee, for appellant. Robert A. Butterworth, Atty. Gen., Marilyn McFadden, Asst. Atty. Gen., Tallahassee, for appellee. WOLF, Judge. Carruthers challenges his conviction for sale of a counterfeit controlled substance pursuant to section 817.563, Florida Statutes (1991)....
...The general legal definition of "sell" as it is reflected in the jury instruction for crimes charged under chapter 893 is as follows: `Sell' means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. (Emphasis added). Section 817.563, Florida Statutes, provides in pertinent part: 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....
...In Sipp, the appellant had been arrested for selling bogus marijuana before the substance and money were exchanged. There, the 5th DCA held that because the evidence demonstrated that there was only an agreement but no delivery and no sale, there was no support for a conviction under section 817.563, Florida Statutes....
...tion of sell. In both cases, the reviewing court found that the chapter 817 definition of sell involved an exchange of consideration for a completed sale. In both *855 cases, the reviewing court reversed the appellant's conviction for a violation of section 817.563, finding that the sale did not involve a completed transfer of money between the parties....
...Further, giving the erroneous instruction was not harmless error because the jury instruction which was given could have led the jury to conclude, contrary to the law, that a mere promise to pay or attempt to sell could satisfy the "sell" element of section 817.563....
...Here, however, the absence of such language permits an application of section
777.04; therefore, an attempt instruction could have been given. In Sipp, the court points out that the crime of attempted sale of a counterfeit controlled substance can be committed under section
817.563 where all the elements are met but no money is actually exchanged....
...BARFIELD, J., concurs. BENTON, J., dissenting with written opinion. BENTON, Judge, dissenting. Whether or not appellant received the money he sought, his offense was complete *856 upon transfer or delivery of a substance "in lieu of [the] controlled substance," section 817.563, Florida Statutes (1991), he had agreed to sell....
...e frustrated; or a finding that he attempted, but did not succeed, in agreeing, consenting, or offering to sell a controlled substance. In light of the evidence, the trial court's refusal to instruct the jury on the elements of an attempt to violate section 817.563, Florida Statutes (1991), was correct, in my opinion....
...Bussey,
463 So.2d 1141 (Fla. 1985), the prosecution need not prove that the accused vendor received money in exchange for a substance delivered in lieu of a controlled substance that the accused has agreed, consented, or offered to sell, in order to obtain a conviction under section
817.563, Florida Statutes....
...5th DCA 1983), that case is distinguishable from the present case, because Mr. Sipp never effected delivery of the ersatz marijuana he was peddling. Id. Our own decision in State v. Thomas,
428 So.2d 327 (Fla. 1st DCA 1983) resolved the narrow question whether section
817.563, Florida Statutes (1981) was constitutional on its face, [1] and did not decide the question presented here....
...Bussey,
463 So.2d 1141, 1145 (Fla. 1985), the supreme court decided "that the legislature could reasonably have concluded that the providing of bogus drugs ... is ... inconsistent with the health and welfare of the people," at 1144-45, and specifically held: Section
817.563 defines an offense having two constituent factual requirements that must be shown. The first is for a person to agree, consent, or offer to sell a controlled substance to another. The second is for the person to then provide `any other substance in lieu of such controlled substance.'
463 So.2d at 1144. The Court found "that section
817.563 is not a fraud statute," at 1143, "concerned with protecting persons illegally purchasing controlled substances from the danger of being sold bogus controlled substances," id., and explicitly rejected the view [2] that the statute req...
...turned convictions, Dotson v. State,
446 So.2d 1084 (Fla. 4th DCA 1984) and Gaines v. State,
444 So.2d 553 (Fla. 4th DCA 1984). [2] The supreme court disapproved the district court's finding in State v. Bussey,
444 So.2d 63 (Fla. 4th DCA 1984) that "Section
817.563 ......
CopyCited 3 times | Published | Florida 2nd District Court of Appeal
...The defendant, Richard Pulliam, appeals the lower court's order adjudicating him guilty of the sale of a counterfeit controlled substance. We reverse and remand. The defendant was charged by information with the sale of a counterfeit controlled substance in violation of section 817.563, Florida Statutes (1981)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1994 WL 34004
...Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellee. BROWN, LUCY, Associate Judge. We affirm appellant's conviction for sale of a substance in lieu of a controlled substance, in violation of section 817.563(1), Florida Statutes (1991), and reverse his sentence which was predicated on the trial court's erroneous classification of appellant as a habitual felony offender....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal
...Petersburg, for appellee. HOBSON, Acting Chief Judge. The state appeals a final order granting Christina Hricik's motion to dismiss count I of an amended information. We reverse and remand. The state charged in count I of an amended information that Hricik violated section 817.563(2), Florida Statutes (1981), in that she did agree, consent or offer to sell to another person a certain controlled substance, to-wit: amphetamines, commonly known as speed, and did then and thereafter sell to said person another substance *1120 in lieu of said controlled substance......
CopyCited 3 times | Published | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 714, 2010 Fla. LEXIS 2083, 2010 WL 4977481
...ilograms of false cocaine to Collazo for $220,000 to $230,000. This testimony might have provided competent, substantial evidence that Hernandez intended to engage in the sale of a counterfeit controlled substance, had that offense been charged. See § 817.563, Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal
...If *763 they used them or sold them after representing the pills as illegal or controlled substances, such proofs would sustain their expulsion under the Rule. McEntire v. Brevard County School Board,
471 So.2d 1287 (Fla. 5th DCA 1985). Analogous to the criminal statute, section
817.563, the person charged with this crime must make a representation to another that the "counterfeit substance" is an unlawful or controlled substance....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellee. PER CURIAM. The state has appealed from an order granting the appellee's motion to dismiss the amended information filed against him on the ground that section
817.563, Florida Statutes (1981), is unconstitutional. We reverse on the authority of our recent decision in M.P. v. State,
430 So.2d 523 (Fla. 2d DCA 1983), wherein we held that section
817.563 is constitutional....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1990 WL 197932
...He entered a nolo contendere plea to that charge, reserving his right to appeal the denial of his motion to dismiss which raised a double jeopardy challenge. We agree that prosecution on that charge is barred by the double jeopardy clause and therefore we reverse. Appellant was charged with sale of cocaine, in violation of Section 817.563, Florida Statutes....
...at particular charge and thus constitutes "former jeopardy" as to that charge. Based on the same conduct from which the charge of sale of cocaine arose, appellant was immediately thereafter charged with the sale of counterfeit drugs, in violation of Section 817.563, Florida Statutes....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1993 WL 309161
...The officer's remark was relevant only to the appellant's bad character and criminal propensity. We therefore reverse and remand for a new trial. Reversed. SCHOONOVER, A.C.J., and BLUE, J., concur. NOTES [1] §
893.13(1)(a)2., Fla. Stat. (Supp. 1990); §
817.563(1), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal
...Gen., Tampa, for appellant. Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellee. *784 PER CURIAM. The state has appealed from an order granting the appellee's motion to dismiss an information on the ground that section
817.563, Florida Statutes (1981), is unconstitutional. We reverse on the authority of our recent decision in M.P. v. State,
430 So.2d 523 (Fla.2d DCA 1983), wherein we held that section
817.563 is constitutional....
CopyCited 1 times | Published | Florida 5th District Court of Appeal
...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 selle...
...nce, 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....
...ON MOTION FOR REHEARING 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. NOTES [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....
CopyCited 1 times | Published | Supreme Court of Florida | 20 Fla. L. Weekly Supp. 589, 1995 Fla. LEXIS 1960, 1995 WL 716642
SUBSTANCE IN PLACE OF A CONTROLLED SUBSTANCE F.S.
817.563 Before you can find (defendant) guilty of Sale
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 13795, 2011 WL 3837292
...I write only to express my opinion that the facts of this case serve to illustrate a clear abuse of a trial court's discretion. On September 14, 2010, pursuant to a negotiated agreement with the state, appellant entered a plea of no contest to a charge of the sale of a substance in lieu of cocaine, contrary to section 817.563, Florida Statutes (2009)....
CopyPublished | Florida 1st District Court of Appeal | 14 Fla. L. Weekly 2298, 1989 Fla. App. LEXIS 5325, 1989 WL 112134
...nd the sale or delivery of a substance falsely represented to be a controlled substance. In Case No. 88-03174, Travis was charged with and pleaded guilty to one count of sale/delivery of a substance in lieu of a controlled substance, in violation of section
817.563, Florida Statutes (1987), a third degree felony punishable as provided in section
775.082, Florida Statutes (1987)....
CopyPublished | District Court of Appeal of Florida | 9 Fla. L. Weekly 2066, 1984 Fla. App. LEXIS 15167
purported controlled substance contrary to Section
817.563, Florida Statutes (1981). The stipulated facts
CopyPublished | Florida 2nd District Court of Appeal | 2005 Fla. App. LEXIS 13861, 2005 WL 2105371
...Thomas earlier raised this sentencing issue by way of a Florida Rule of Criminal Procedure 3.800(b)(1) motion, but his motion was deemed denied due to the trial court’s inaction. See Fla. R.Crim. P. 3.800(b)(1)(B). The trial court imposed concurrent sentences of seventy-two months for a violation of section
817.563(1), Florida Statutes (2000), and a violation of section
893.13(6)(a), Florida Statutes (2002)....
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 21688
...Sale of a substance in lieu of a controlled substance The evidence clearly reflects that in two instances appellant agreed to sell a police informant a controlled substance and in lieu thereof sold him a noncontrolled substance. We reject appellant’s contention that section 817.563, Florida Statutes (1981), is unconstitutionally vague and over-broad....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 2183, 1989 Fla. App. LEXIS 5061, 1989 WL 105633
...Of the two issues raised by Brown, we find merit in only one. The state concedes that Brown’s judgment and sentencing guidelines scoresheet erroneously indicate that the sale of a counterfeit drug is a second-degree felony, instead of a third-degree felony. See § 817.563(1), Fla.Stat....
CopyPublished | Florida 5th District Court of Appeal | 9 Fla. L. Weekly 2163, 1984 Fla. App. LEXIS 15402
PER CURIAM. Section 817.563, Florida Statutes (1981), prohibiting the sale of a counterfeit substance in lieu of a controlled substance, is constitutional....
CopyPublished | Supreme Court of Florida | 10 Fla. L. Weekly 547, 1985 Fla. LEXIS 3921
substance agreed to be sold, in violation of section
817.563, Florida Statutes (1983). On appeal, petitioner
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 10830, 1994 WL 627367
...5th DCA 1991), approved,
607 So.2d 422 (Fla. 1992), upon which Sinclair relies. In Thompson, the defendant was convicted of both felony petit theft, under section
812.014(2)(d), Florida Statutes, and fraudulent sale of a counterfeit controlled substance, under section
817.563, Florida Statutes....
CopyPublished | District Court, M.D. Florida | 2012 WL 1964100
...a controlled substance or listed chemical.” 21 U.S.C. § 802 (11). Furthermore, the term “sell,” as it is used in Chapter 817, Florida Statutes, “means the actual transfer or delivery of something to another person in exchange for money or something of value.” § 817.563, Fla....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 1135, 1986 Fla. App. LEXIS 7805
GLICKSTEIN, Judge. This is an appeal from a conviction for offering to sell a controlled substance and substituting another substance in violation of section 817.563, Florida Statutes (1981)....
...lastic bag containing another substance, a small rock (pebble). Before any money exchanged hands the defendant was taken into custody. The defendant filed a sworn motion to dismiss, contending that for a conviction to properly lie for a violation of section 817.563 a “sale” must have been completed....
...he denial of the motion, was convicted and placed on three years' probation. This appeal followed. The issue is whether the trial court erred in denying appellant’s sworn motion to dismiss Count I of the information, charging him with violation of section 817.563(1) because the sale was not completed. We conclude that it did. The pertinent statute reads, in part: 817.563 Controlled substance named or described in s....
...893.03 and then sell to such person any other substance in lieu of such controlled substance. The plain meaning of the statute is that a subsequent sale of a “bogus drug” is required. In State v. Bussey,
463 So.2d 1141 (Fla.1985), the supreme court stated: Section
817.563 defines an offense having two constituent factual requirements that must be shown....
...to change the plain meaning of the statute. Appellant points out, appropriately we think, that prior to the supreme court’s decision in Bussey the First District Court of Appeal specifically found that the second element of the crime proscribed in section 817.563 requires after the defendant has offered to sell a controlled substance “the defendant must then sell to such person any other substance in lieu of such controlled substance....
...lacking. *634 The sworn motion to dismiss should have been granted. HERSEY, C.J., and DELL, J., concur. . The state responds that a completed sale is not required under the logic of State v. Bussey because therein the Florida Supreme Court held that section 817.563 is a drug abuse statute and not a fraudulent practices statute; thus, the case law interpreting Chapter 893, Florida’s Comprehensive Drug Abuse Prevention and Control Act, applies and suggests that a sale need not be completed to sustain a conviction....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 2804, 1991 WL 43167
...a continuance and would probably set trial for July 9th, appellant failed to establish irreparable prejudice resulting from the discovery violation. See State v. Powell,
566 So.2d 588 (Fla. 3d DCA 1990). Affirmed. SMITH and WIGGINTON, JJ., concur. . Section
817.563, Florida Statutes, provides in part:
817.563 Controlled substance named or described in s....
CopyPublished | Florida 2nd District Court of Appeal | 1983 Fla. App. LEXIS 20245
...However, appellant’s offense is improperly identified on the judgment and the order of probation as “Sale of a Controlled Substance,” when the offense he actually committed was sale of an uncontrolled substance that he represented to be a specific controlled substance (methamphetamine), in violation of Section 817.563, Florida Statutes (1981)....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 6504, 1993 WL 210586
...We affirm the conviction, but reverse and remand the judgment for correction of a technical error in the description of the offense. Throughout the proceedings below, the terms, “sale of a substance in lieu of a controlled substance,” proscribed by Section
817.563, Florida Statutes (1989), and “sale of an imitation controlled substance,” an offense under Section
817.564, Florida Statutes (1989), were used interchangeably. Although the jury was exposed several times to the erroneous title of the information, “sale of imitation controlled substance,” the court’s discussion of the content or substance of the charging offense tracked the language of section
817.563, i.e., sale of a substance in lieu of a controlled substance. The body of count I of the information, all of the evidence at trial, and the court’s final instructions to the jury all pointed to the offense proscribed by section
817.563....
...Lewis v. State,
154 Fla. 825 ,
19 So.2d 199 (1944); Cotton v. State,
395 So.2d 1287 (Fla. 1st DCA 1981). Because, however, the judgment form states that Jones was found guilty in count I of “SALE OF IMITATION CONTROLLED SUBSTANCE” under section “
817.563(1),” thus referring to the correct statute number but the wrong title, we reverse the judgment and remand the case with directions that the final judgment be corrected by identifying the offense under count I as “sale of a substance in li...
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 5716, 1994 WL 256973
...gally insufficient to support a verdict of guilty of purchase of marijuana, because appellant was arrested before the transaction could be completed. See generally Mitchell v. State,
488 So.2d 632 (Fla. 4th DCA) (no “sale” occurs for purposes of section
817.563, Florida Statutes (1981), when defendant is arrested after delivering alleged drugs to undercover officer, but before payment is made), review denied,
494 So.2d 1153 (Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit | 2001 U.S. App. LEXIS 11572
...of trafficking in cocaine and five counts of possession of various narcotic substances. He pled guilty in the
Circuit Court for the Fifteenth Judicial Circuit of Florida to the lesser included offense of possession of
cocaine with intent to sell in March of 1996. See Fla. Stat. Ann. § 817.563, amended by 2000 Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit
...unts of possession of various
narcotic substances. He pled guilty in the Circuit Court for the Fifteenth Judicial
Circuit of Florida to the lesser included offense of possession of cocaine with intent
to sell in March of 1996. See Fla. Stat. Ann. § 817.563, amended by 2000 Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2000 Fla. App. LEXIS 9436, 2000 WL 1036183
PER CURIAM. Sebastian Leonard Seaife seeks a writ of prohibition to prevent the State from going forward with its prosecution of him on a charge of sale of a substance in lieu of a controlled substance, in violation of section 817.563(1), Florida Statutes (1999)....
CopyPublished | Florida 2nd District Court of Appeal | 1984 Fla. App. LEXIS 14142
PER CURIAM. Defendant appeals from conviction of two counts of agreeing to sell a controlled substance and then selling another substance in lieu of such controlled substance, contrary to section 817.563, Florida Statutes (1983)....
CopyPublished | Florida 4th District Court of Appeal | 1984 Fla. App. LEXIS 11468
PER CURIAM. Defendant’s conviction under Section 817.563, Florida Statutes (1981), is reversed on the authority of State v....
CopyPublished | Supreme Court of Florida | 10 Fla. L. Weekly 114, 1985 Fla. LEXIS 3255
...ge, held a state statute valid against a constitutional challenge, thus giving this Court jurisdiction to review the decision. Art. V, § 3(b)(3), Fla. Const. We approve the decision of the district court of appeal. The question presented is whether section 817.563, Florida Statutes (1981), is constitutional....
...It is argued that the statute fails to contain a required intent element; that it is vague; that it improperly burdens the defendant with proving his innocence, and that it bears no reasonable relationship to a legitimate state objective. We reject all of these arguments and declare section 817.563 to be constitutional....
CopyPublished | Florida 1st District Court of Appeal | 1984 Fla. App. LEXIS 11571
...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)....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 12381, 1991 WL 267965
...For the following reason, we reverse and remand for a new trial. Ruffner and a codefendant arranged to sell $500 worth of LSD to a police informant. However, the substance sold tested negative for LSD in both field and laboratory tests. Ruffner was charged with violating section 817.563, Florida Statutes (1989), which provides that “[i]t 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....
CopyPublished | Florida 1st District Court of Appeal | 2005 Fla. App. LEXIS 19544, 2005 WL 3357706
...of an active criminal investigation.” §
893.13(9)(h), Fla. Stat. (2004). 2 Thus, Manucy is not controlling. Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion. BENTON and PADOVANO, JJ., concur. . We note that section
817.563, Florida Statutes (2004), makes it “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.” See State v. Bussey,
463 So.2d 1141 (Fla.1985). Section
817.563 was not effective at the time Manucy was decided....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 8641, 1993 WL 313581
...any interest in any activity except reading. Accordingly, we affirm the trial court's ruling which upheld the state’s use of the subject peremptory challenge as being race-neutral and non-pretextual. AFFIRMED. W. SHARP, and GRIFFIN, JJ., concur. . § 817.563, Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal | 1983 Fla. App. LEXIS 19174
CAMPBELL, Judge. Appellant, a juvenile, was charged by petition for delinquency with three counts of sale of a substance in lieu of a controlled substance in violation of section 817.563, Florida Statutes (1981). Appellant allegedly offered to sell to three different persons Methamphetamine (“speed”) but instead sold each of them "fake speed.” Appellant moved to dismiss the charges, maintaining that section 817.563 suffered from constitutional infirmities....
...munity control program. Appellant filed a timely notice of appeal, and we affirm. The same issues raised here by appellant were recently argued in State v. Thomas,
428 So.2d 327 (Fla. 1st DCA 1983), in which our colleagues in the First District held section
817.563 to be constitutional. We agree and adopt the reasoning of the court in that case with one exception. While we may be misinterpreting what the court said in Thomas , we are concerned with its statement that section
817.563 requires the state to prove “that the defendant agreed, consented or offered to sell a substance which the defendant knew to be a controlled substance (and then sold an uncontrolled substance in lieu thereof).” Thomas , at 329-330 (emphasis added)....
...Our particular concern is with the emphasized language. We interpret that statement to require that it be proven that the defendant originally intended to sell a controlled substance. If that interpretation is correct, we disagree, for we conclude that persons charged can be guilty of violating section 817.563 even if their intent is from the beginning to sell an uncontrolled substance, and the original “fake” offer to sell a controlled substance is a complete subterfuge....
CopyPublished | Florida 1st District Court of Appeal | 1990 WL 48643
...An information filed October 20, 1988, charged that on September 14, 1988, appellant unlawfully agreed to sell cocaine, and then sold a substance in lieu of said controlled substance. After a jury trial, appellant was found guilty of the sale of a substance in lieu of a controlled substance, a violation of section 817.563, Florida Statutes (1987)....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 3621, 1991 WL 61782
PER CURIAM. Earnest Tillman appeals a judgment and sentence adjudicating him guilty of sale of a substance in lieu of a controlled substance in violation of section
817.563, Florida Statutes (1987), possession of a controlled substance with intent to sell in violation of section
893.13(l)(a), Florida Statutes (Supp.1988), and sale of a controlled substance in violation of section
893.13(l)(a), Florida Statutes (Supp.1988)....
