CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1992 WL 111579
...After arresting the defendant on an outstanding warrant, the police officers, while searching him, found a substance in his pocket which they believed to be crack cocaine. However, after testing, the substance was found not to be a "controlled substance" [1] . The State charged the defendant with a violation of section 817.564(3), Florida Statutes, which makes it unlawful for any person to possess with intent to sell any "imitation controlled substance"....
...Any person who violates this subsection is guilty of a felony of the third degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. [Emphasis added]. * * * * * * The defendant moved pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), to dismiss the charges on two grounds: (1) that section
817.564 is unconstitutional on its face and void because it criminalizes essentially innocent conduct and because it is impermissibly vague and (2) that the substance in question was, in fact, wax, the possession of which is not illegal under section
817.564. The motion to dismiss asserted that the wax in the defendant's possession was not an imitation controlled substance "which is subject to abuse" as that phrase is used in section
817.564(1), and was interpreted in State v....
...[3] Because the State did not traverse the defendant's claim that the substance in question was wax that fact is uncontested and the proper interpretation of the statute appears to be the sole issue and to be dispositive of the case. The subject of the main sentence in section 817.564(1) is "imitation controlled substance"....
...tial *260 facts constituting the offense charged" which must be alleged under Rule 3.140(d)(1) and are not a "statutory exception, excuse or proviso" which is not required to be negatived by allegation under Rule 3.140(k)(4). [6] Subparagraph (3) of section 817.564, Florida Statutes, which is the portion of the statute criminalizing conduct relating to "imitation controlled substances" makes it unlawful to "possess" an "imitation controlled substance" only if such possession is combined with "th...
...Chapter 893 is easy to understand in that it criminalizes the possession of drugs ("controlled substances"), the ingestion of which is, in the opinion of our law-makers, harmful to the individual and to society generally. However, the "imitation controlled substance statute", section 817.564(3), Florida Statutes, presents extraordinary difficulty in this particular in that it criminalizes the possession of essentially non-harmful substances because from appearance or representations such non-harmful substances might "likely" be mistaken for the harmful drugs criminalized by Chapter 893....
...essential facts constituting the offense charged be set forth in the charging document as well as proved beyond a reasonable *262 doubt at trial. [11] The original information in this case charged the defendant: did, in violation of Florida Statute 817.564, possess an imitation controlled substance, to-wit: Cocaine....
...The information after amendment alleged only that the defendant possessed an imitation controlled substance, to-wit: cocaine "with" intent to distribute, sell, or give away an imitation controlled substance. The charging document in this case, even as amended, entirely fails to adequately allege an offense under section 817.564....
...Therefore the videlicet, or specification, itself contradicts, and is inconsistent with, the general term ("imitation controlled substance") it attempts to make more specific. The information is this case fails to state essential facts constituting a violation of section 817.564 in that the information (1) does not allege what the imitation substance actually was, (2) does not clearly allege what genuine controlled substance it was intended to imitate, (3) does not allege that the imitation substance was subj...
...e mistaken for the genuine substance, (6) does not allege that the defendant introduced the particular imitation substance into "commerce" after the initial introduction into commerce of the genuine controlled substance it is alleged to imitate (per section 817.564(1)(a)) for the purpose of imitation, and (7) does not allege the defendant's essential knowledge of the imitative character of the substance in question....
...n. In other words, the State need only prove what is alleged in the information; therefore it is necessary that all facts essential to the statement of a substantive criminal cause of action be alleged. [12] To construe the second "WHICH" proviso in section 817.564(1), Florida Statutes, ("which is subject to abuse") to relate to genuine controlled substances under chapter 893, as the State contends, would be to construe this statutory ambiguity most favorable to the State, rather than the accuse...
...ased words and phrases such as "abuse", "subject to abuse", "commerce", "introduced into commerce", "will be mistaken", "overall dosage unit appearance". Note and compare the extended effort to define the one term "representations made" contained in section 817.564(2), Florida Statutes.
