Brown v. State, 6 Div. 442

• Decision Date: 24 February 1981
• Docket Number: 6 Div. 442
• Citation: 398 So.2d 784
• Parties: Andre Louis BROWN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 784

398 So.2d 784

Andre Louis BROWN v. STATE.

6 Div. 442.

Court of Criminal Appeals of Alabama.

Feb. 24, 1981.

Rehearing Denied March 17, 1981.

Gary L. Smith of Elledge & Smith, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for the unlawful possession of 125 tablets containing pentazocine (Talwin) in violation of the Alabama Uniform Controlled Substances Act. Alabama Code 1975, Sections 20-2-1 et seq. After waiving his right to a jury trial, the defendant was tried in circuit court where the facts of the case were stipulated by counsel. Sentence was two years' imprisonment.

Three issues are presented on appeal.

I

Initially, the defendant contends that at the time of his arrest Talwin had not been legally classified as a controlled substance in this state. It was stipulated that on November 7, 1979, the defendant was arrested in Jefferson County. In his possession were 125 tablets containing pentazocine (Talwin).

A

The defendant argues that Talwin is not controlled because the Board of Health failed to comply with Alabama Code 1975, Sections 20-2-20(a) and (b) in placing this drug on the list of controlled substances.

Talwin was designated a controlled substance by the Federal Government on January 10, 1979. Volume 44, Federal Register No. 7, page 2169. Consequently and under the facts of this case, Sections 20-2-20(a) and (b) do not govern.

Section 20-2-20(d) ¹ provides that substances controlled under Federal law will automatically be controlled under Alabama law, unless the Board of Health objects. In commenting on subsection (d), our Supreme Court has stated:

"A reading of the statute (Section 20-2-20) reveals that the classification procedures under (a) and (b) refer to different scheduling requirements. Paragraph (a) deals with the Board's classification of a substance upon its own initiative. In performing that function the Board is required to consider eight specified aspects, and thereafter under paragraph (b) to 'make findings ... and issue a rule controlling the substance if it finds the substance has a potential for abuse.'

"Paragraph (d), however, entails an entirely different procedure, unrelated to the several aspects specified in paragraph (a). Under (d) the Board may rely upon a final control order published in the federal register, and 30 days from such publication may itself order control. Paragraph (d) allows for an objection to the control of such a substance and a public hearing following the Board's published objections. In its salient features, paragraph (d) adopts the procedures utilized by the federal government in determining a control status, a procedure significantly similar to that accomplished under our own law. 21 U.S.C.A. Sections 802, 811, 812."

McCurley v. State, 390 So.2d 25, 30 (Ala.1980).

The undisputed evidence in this case is that the Board of Health made no objection to the federal designation of Talwin tablets as a Schedule IV controlled substance. As a result, thirty days from publication in the Federal Register of the final order designating Talwin tablets as a Schedule IV substance, Talwin tablets became a Schedule IV controlled substance in Alabama.

B

The defendant argues that the State Board of Health rejected the federal decision to classify Talwin as a controlled substance and retained its own earlier classification of Talwin.

From the exhibits admitted into evidence in this case, it appears that the State Board of Health classified Talwin as a controlled substance on August 15, 1973. However, in McCurley v. State, 390 So.2d 15 (Ala.Cr.App.), affirmed in part, reversed in part, 390 So.2d 25 (Ala.1980), our Supreme Court found that this classification was "legally deficient" because the Board of Health had not followed the procedures outlined by the legislature in Sections 20-2-20(a) and (b).

Under the State Board of Health's own regulations, injectable pentazocine or Talwin was classified as a Schedule III controlled substance, while oral pentazocine was listed as a Schedule IV substance. The Federal Register classifies all pentazocine as a Schedule IV substance.

An extract from the minutes of the February 21, 1979, meeting of the Board of Health reflects:

"A notice from the Federal Register, Vol. 44, No. 7, Wednesday, January 10, 1979, places Pentazocine into Schedule IV of the Federal Schedule, effective February 9, 1979. The Subcommittee moved that the placement of Talwin Tablets and Compound in Schedule IV coincides with action previously taken in Alabama by the State Committee of Public Health, but that injectible Pentazocine would remain in Schedule III and would be unchanged from its position as earlier placed in Alabama by the State Committee of Public Health. The motion carried unanimously."

Under the principles stated in McCurley, the evidence in this case does not show that the State Board of Health has complied with its statutory duty in classifying injectable pentazocine as a Schedule III controlled substance. There is no evidence that the Board "publish(ed) the reasons for objection (to the federal classification) and afford(ed) all interested parties an opportunity to be heard." Section 20-2-20(d). However this case involves Talwin tablets, not injectable Talwin. The evidence does reflect that there was no objection made by the State Board to the Federal classification of Talwin tablets as a Schedule IV controlled substance. In fact, the Board had previously classified Talwin tablets as a Schedule IV substance although this attempted classification was "legally deficient". McCurley. Since no objection to the Federal classification of oral Talwin was filed, oral Talwin became a Schedule IV controlled substance in Alabama as a matter of law on February 10, 1979.

II

The defendant argues that his constitutional right of due process is violated by the provisions of Alabama Code 1975, Section 20-2-20(d).

Procedural due process requires that citizens be given fair notice of conduct forbidden by a penal statute. A strong argument can be made that Section 20-2-20(d) violates procedural due process insofar as it authorizes the designation or rescheduling of drugs as controlled substances by the Board's mere failure to object within thirty days from final publication in the Federal Register, State v. Dougall, 87 Wash.2d 118, 570 P.2d 135 (1977). However, this Court is bound by the decisions of the Supreme Court of Alabama.

In McCurley, one of the contentions was that the procedure outlined under Section 20-2-20(d) violated the requirements of due process of law because it "furnished inadequate notice to affected parties." McCurley, 390...