Florida/Georgia Personal Injury & Workers Compensation

...Hester, 917 F.2d 1083, 1084 (8th Cir.1990), which is a counterfeit substance case. However, if this court intends to stand on the "counterfeit substance" prong of § 4B1.2(2), that prong does not fit. Both the federal statute, 21 U.S.C. § 802 (7), and Florida's parallel statute, Fl.Stat.Ann. § 831.31(2) (West 1989), define "counterfeit substance" as a controlled substance that is mislabeled so as to misidentify the manufacturer, distributor or dispenser....

...Hutchinson's Florida conviction did not involve either a controlled substance or mislabeling. 47 Section 831.3(2) is Florida's counterfeit controlled substance statute. At the time of defendant's conviction it read, in relevant part: TITLE XLVI. CRIMES CHAPTER 831. FORGERY AND COUNTERFEITING 48 831.31....

..., of a manufacturer other than the person who in fact manufactured the controlled substance; or 53 (b) Any substance which is falsely identified by its container or labeling as a controlled substance named or described in s. 893.03. 54 Fla.Stat.Ann. § 831.31(1), (2) (West 1989) (emphasis added)....

...This appears in the Forgery and Counterfeiting chapter of the Code. It is apparent that in 1990 this was a mislabeling statute. The Florida cases treat it as directed at counterfeiting, not at controlled substances. See Durr v. State, 583 So.2d 424 (Fla.Dist.Ct.App.1991) (no violation of § 831.31 when officers found a "clear Ziploc sandwich bag containing 12 rocks of what appeared to be cocaine, but was not"); Adderly v....

...erfeit controlled substance" statute when the defendant possessed a "nondescript, unmarked, and unlabeled bag containing eight rocks of fake cocaine"); Twinn v. State, 442 So.2d 286, 287 (Fla.Dist.Ct.App.1983) (reversing defendant's conviction under § 831.31 when he was arrested with "seven clear plastic bags containing a white powder, which later proved not to be cocaine or any other controlled substance")....

...d such a substance. Unlike Hester's offense, Hutchinson's offense was not a counterfeit controlled substance offense under Florida law. 58 Alternatively, the government relies on a 1992 amendment to the Florida controlled substance law. Fl.Stat.Ann. § 831.31(2) (West 1994)....

...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. "Bogus drugs" are to be distinguished from "counterfeit drugs." Section 831.31, Florida Statutes (1981), prohibits 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....

...and fines that range from $50,000 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....

...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. Stat. (2009). While section 831.31(1) provides: 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.[ 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....

...off-white powder. She testified that "if a number of different bags of powder were dumped together, I would not be able to determine whether all of them were of exactly the same composition.” . A "counterfeit controlled substance” is defined by section 831.31(2)(a), Florida Statutes (2009), as: A controlled substance named or described in [section] 893.03 which, or the container or labeling of which, without authorization bears the trademark, trade name, or other identifying mark, imprint,...

and Florida’s parallel statute, Fl.Stat.Ann. § 831.31(2) (West 1989), define “counterfeit substance”

...Jim Smith, Atty. Gen., and Patricia Conners, Asst. Atty. Gen., Tallahassee, for appellee. WIGGINTON, Judge. Appellant appeals the trial judge's order finding him guilty of possession of a counterfeit controlled substance with intent to deliver, in violation of section 831.31, Florida Statutes....

...The lab report performed on the pills revealed that they were not controlled substances, but instead were merely caffeine tablets. Consequently, appellant was charged with unlawfully and knowingly possessing a counterfeit controlled substance with the intent to deliver in violation of section 831.31, Florida Statutes....

...I think at this point it creates a factual issue that will be determined at —. The trial judge determined that the traverse presented a factual issue and therefore he denied the 3.190(c)(4) motion. We do not reach the merits of the argument presented by appellant. He relates that section 831.31(2)(b), the only portion of the statute under which he could be prosecuted, proscribes only the possession, with intent to sell, manufacture, or deliver, of a noncontrolled substance that is identified by its container or labeling as a controlled substance....

...Pentecost, 397 So.2d 711 (Fla. 5th DCA 1981). Since the record before the trial judge did not show conclusively that the State could not prove that the pills seized were labeled in such a way to indicate that they were controlled substances and thus that the requirements of section 831.31(2)(b) could not be met, material disputes of fact were still in existence at the time the 3.190(c)(4) motion was made and ruled upon by the trial judge....

...Public Defender, Tallahassee, for appellant. Robert A. Butterworth, Atty. Gen., Virlindia Doss, Asst. Atty. Gen., Tallahassee, for appellee. WOLF, Judge. This is an appeal of an order denying the appellant's motion to dismiss. The appellant contends that section 831.31, Florida Statutes (1989), under which he was charged, does not apply to an act of possession *558 of cocaine in an unmarked, clear, plastic bag. We agree and reverse the defendant's conviction. Section 831.31 states: (2) For purposes of this section, "counterfeit controlled substance" means: (a) A controlled substance named or described in s....

...The defendant in Twinn was arrested while possessing a white powder, which was not cocaine, in clear plastic bags. The appellate court reversed, finding that placing the white substance in a plastic bag is not sufficient to qualify as an act of mislabeling. We find that the trial court's application of section 831.31, Florida Statutes, exceeded the intended scope of the statute....

...Following Twinn's arrest seven clear plastic bags containing a white powder, which later proved not to be cocaine or any other controlled substance, were found on 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)....

...d statute rather than a drug abuse statute. Protection of drug users from overdosing and protection of high school drug programs clearly deal with drug abuse and not with fraud. Further, there is already a counterfeit drug statute in this state. See Section 831.31, Florida Statutes (1981), which makes it unlawful for any person to sell any counterfeit controlled substance....

...Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee. PER CURIAM. Lawrence Durr has appealed an order of the trial court denying his motion to dismiss a charge of possessing with intent to sell or deliver a counterfeit controlled substance, contrary to section 831.31(1)(a), Florida Statutes (1989)....

...We reverse, with instructions to enter an order granting Durr's motion to dismiss. Following an anonymous tip, a police officer approached Durr and received permission to search him. The officer found a clear Ziploc sandwich bag containing 12 rocks of what appeared to be cocaine, but was not. Durr was charged under section 831.31, which makes it unlawful to possess with intent to sell or deliver a "counterfeit controlled substance." The latter term is defined in section 831.31(2)(b) as "[a]ny substance which is falsely identified by its container ......

...peal that ruling. In Adderly v. State, 571 So.2d 557 (Fla. 1st DCA 1990), the appellant was arrested with a clear plastic bag, "nondescript, unmarked and unlabeled," containing 8 rocks of fake cocaine. He moved to dismiss the subsequent charge under 831.31, and the trial court denied the motion....

...Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee. SAWAYA, C.J. J.L.F., a juvenile, appeals the order adjudicating him delinquent for possession of a counterfeit controlled substance with intent *433 to sell in violation of section 831.31(1)(a), Florida Statutes (2001)....

...We hold that unless the package contains a false label identifying the substance as a controlled substance, or the defendant falsely identifies the substance as a controlled substance, a conviction for possession of a counterfeit controlled substance with intent to sell or deliver may not be obtained under section 831.31....

...After these facts were presented to the jury by the State, the State rested, and J.L.F. made a motion for judgment of acquittal arguing that the evidence was insufficient to prove the crime of possession of a counterfeit controlled substance with intent to sell under section 831.31, Florida Statutes....

...2278, 156 L.Ed.2d 137 (2003); Sutton v. State, 834 So.2d 332 (Fla. 5th DCA 2003). To determine whether the evidence presented by the State is legally sufficient to establish a prima facie case of guilt against J.L.F., we must look to the statutory elements of the offense. Specifically, section 831.31 makes it a crime to "possess with intent to sell ... a counterfeit controlled substance." § 831.31(1), Fla. Stat. (2001). A "counterfeit controlled substance" is defined in section 831.31(2) as follows: (a) A controlled substance named or described in s....

...feit substance with intent to distribute); Adderly v. State, 571 So.2d 557 (Fla. 1st DCA 1990) (holding that placing fake crack cocaine in a nondescript, unmarked and unlabeled plastic bag was not sufficient to establish the act of mislabeling under section 831.31)....

...falsely identified the substance to another as cocaine. [1] Because the State failed to present legally sufficient evidence to establish the elements of the crime of possession of a counterfeit controlled substance with intent to sell in violation of section 831.31, the trial court erred in denying J.L.F.'s motion for judgment of acquittal....

...ar line of demarcation separates fact from opinion testimony. As to the charge of possession of a counterfeit controlled substance with intent to sell, however, we find that the evidence was legally insufficient to sustain Mr. Damen's conviction. In section 831.31, Florida Statutes (1999), which prohibits the possession with intent to sell a counterfeit controlled substance, the legislature defined the term "counterfeit controlled substance" in two ways....

...ool, citing violations of sections 893.13(1)(c)1. and 893.03(2)(a), Florida Statutes. Over the objection of the defense, the jury was instructed on a purported lesser included offense of delivery of a counterfeit controlled substance, a violation of section 831.31, Florida Statutes....

SAWAYA, C.J. J.L.F., a juvenile, appeals the order adjudicating him delinquent for possession of a counterfeit controlled substance with in *433 tent to sell in violation of section 831.31(l)(a), Florida Statutes (2001)....

...We hold that unless the package contains a false label identifying the substance as a controlled substance, or the defendant falsely identifies the substance as a controlled substance, a conviction for possession of a counterfeit controlled substance with intent to sell or deliver may not be obtained under section 831.31....

...After these facts were presented to the jury by the State, the State rested, and J.L.F. made a motion for judgment of acquittal arguing that the evidence was insufficient to prove the crime of possession of a counterfeit controlled substance with intent to sell under section 831.31, Florida Statutes....

...2278 , 156 L.Ed.2d 137 (2003); Sutton v. State, 834 So.2d 332 (Fla. 5th DCA 2003). To determine whether the evidence presented by the State is legally sufficient to establish a prima facie case of guilt against J.L.F., we must look to the statutory elements of the offense. Specifically, section 831.31 makes it a crime to “possess with intent to sell ... a counterfeit controlled substance.” § 831.31(1), Fla. Stat. (2001). A “counterfeit controlled substance” is defined in section 831.31(2) as follows: (a) A controlled substance named or described in s....

...feit substance with intent to distribute); Adderly v. State, 571 So.2d 557 (Fla. 1st DCA 1990) (holding that placing fake crack cocaine in a nondescript, unmarked and unlabeled plastic bag was not sufficient to establish the act of mislabeling under section 831.31)....

...falsely identified the substance to another as cocaine. 1 Because the State failed to present legally sufficient evidence to establish the elements of the crime of possession of a counterfeit controlled substance with intent to sell in violation of section 831.31, the trial court erred in denying J.L.F.’s motion for judgment of acquittal....

PER CURIAM. We reverse the dismissal of the information charging appellee with one count of delivery of a counterfeit controlled substance. See § 831.31, Fla....

...Later testing by the crime lab confirmed that the rocks were not cocaine, but were made of acetaminophen, aspirin, and caffeine. The State filed an information charging appellant in Count I with possession of a counterfeit controlled substance with intent to sell, a violation of section 831.31(a), Florida Statutes (2020); in Count II, it charged him with use or possession of drug paraphernalia, a violation of section 893.147(1), Florida Statutes (2020). At trial, the detective who discovered the cigar tube testified tha...

...If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. Id. 2  Appellant argues that section 831.31 requires that the counterfeit substance either be labeled or identified as a controlled substance, and the evidence at trial failed to show either....

...error”); Griffin v. State, 705 So. 2d 572, 574 (Fla. 4th DCA 1998) (finding that “[a] conviction is fundamentally erroneous when the facts affirmatively proven by the State simply do not constitute the charged offense as a matter of law”). Section 831.31, Florida Statutes (2020), addresses “[c]ounterfeit controlled substance; sale, manufacture, delivery, or possession with intent to sell, manufacture, or deliver[.]” See State v....

...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. § 831.31(1)(a), Fla. Stat. (2020). Cocaine is a substance named and described in section 893.03(2). A counterfeit controlled substance is defined in section 831.31(2) as follows: (a) A controlled substance named or described in s....

...3  of a manufacturer other than the person who in fact manufactured the controlled substance; or (b) Any substance which is falsely identified as a controlled substance named or described in s. 893.03. § 831.31(2), Fla. Stat. (2020). Thus, for the State to prove a violation of section 831.31(1)(a), the State must present evidence either of some labelling, which contains some identifying mark, number, or likeness of a trademark of a manufacturer other than the person who in fact manufactured the product....

...counterfeit substance with intent to distribute); Adderly v. State, 571 So. 2d 557 (Fla. 1st DCA 1990) (holding that placing fake crack cocaine in a nondescript, unmarked and unlabeled plastic bag was not sufficient to establish the act of mislabeling under section 831.31). Because the crime requires the mislabeling of the container or the false identification of the substance, appellant’s eighteen rocks in the cigar tube which were not cocaine do not meet the definition of a controlled substance as set forth in section 831.31(2)....

...To the contrary, appellant specifically told the detective that it was fake cocaine. As the State failed to prove that the charged crime occurred, we must reverse his conviction and sentence as to Count I for violation of section 4 831.31(1)(a), Florida Statutes (2020)....

...* * * Not final until disposition of timely filed motion for rehearing. 1Other statutes may have applied to these facts, such as section 817.564, Florida Statutes (2020), but the State only charged a violation of section 831.31(1)(a). 5 

court erred in ruling that the provisions of section 831.31, Florida Statutes (1981),1 were *1186facially

pursuant to a conviction for a violation of section 831.31, Florida Statutes (1989). Appellant contends