Cilento v. State

• Decision Date: 21 November 1979
• Docket Number: No. 53214,53214
• Citation: 377 So.2d 663
• Parties: Rafael CILENTO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 663

377 So.2d 663

Rafael CILENTO, Appellant, v. STATE of Florida, Appellee.

No. 53214.

Supreme Court of Florida.

Nov. 21, 1979.

William P. Cagney, III, and G. P. Della Fera, Miami, for appellant.

Jim Smith, Atty. Gen., and Ronald A. Dion, Asst. Atty. Gen., Miami, for appellee.

OVERTON, Justice.

Rafael Cilento, a medical doctor licensed to practice in Florida, was convicted in circuit court pursuant to plea of nolo contendere of selling or delivering a controlled substance in violation of section 893.13(1)(a), Florida Statutes (1975). In a motion to transfer appellant challenged the circuit court's jurisdiction, contending that the information charged no more than a misdemeanor. By motion to dismiss he challenged the constitutionality of the statute under which he was charged. When he changed his plea to nolo contendere, the appellant specifically reserved the right to appeal the court's rulings on these two legal issues. In denying the motion to dismiss, the trial court passed upon the constitutionality of the statute, giving this Court jurisdiction of the appeal. Art. V, § 3(b)(1), Fla.Const.

The information charged, in pertinent part, that Dr. Cilento "did unlawfully and feloniously sell or deliver to (a named individual), by means of a prescription issued in bad faith and not in the course of professional practice, a controlled substance, to wit: methaqualone. . . ."

Section 893.03(3)(a)(6) classifies methaqualone as a Schedule III substance, Sale or Delivery of which is a third-degree felony under section 893.13(1)(a) (2). To Distribute or Dispense a controlled substance is made a misdemeanor of the first degree by section 893.13(2)(a), (b). Section 893.05(1) provides that: "A practitioner, in good faith and in the course of his professional practice only, may prescribe, administer, dispense, mix, or otherwise prepare a controlled substance . . . ."

Appellant has two contentions in reference to the constitutionality of the statute. He contends that the inclusion of methaqualone as a controlled substance in chapter 893 is unconstitutional because the legislature acted without a sufficient factual basis. He also contends that the legislature's action in putting methaqualone on the list constitutes an unlawful delegation of legislative authority.

Appellant points out that chapter 893 is modeled after the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970. Pub.L.No. 91-513, 84 Stat. 1242 (1970). ¹ The Florida law was enacted in 1973 and adopted the schedules of controlled substances in the federal law, with some variations. Appellant maintains that there were no independent fact-finding efforts in Florida on the merits of controlling the various enumerated substances. Therefore, he concludes, the legislature's action in controlling methaqualone was arbitrary and denies due process. Appellant's argument on this point is unsound. Acts of the legislature are presumed to be constitutional. Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 55 S.Ct. 187, 79 L.Ed. 281 (1934); State v. Gale Distributors, 349 So.2d 150 (Fla.1977); State v. Bales, 343 So.2d 9 (Fla.1977). Where a factual predicate is necessary to the validity of an enactment, it is to be presumed that the necessary facts were before the legislature. As we stated in Bales :

If any state of facts, known or to be assumed, justify the law, the court's power of inquiry ends. United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). Questions as to wisdom, need or appropriateness are for the Legislature. Olsen v. State of Nebraska, ex rel. Western Reference & Bond Ass'n, 313 U.S. 236, 246, 61 S.Ct. 862, 85 L.Ed. 1305 (1941) . . . .

343 So.2d at 11. Thus, the constitution does not limit the legislature to particular methods for acquiring knowledge. This being so, we find no constitutional inadequacy in the procedure used by the legislature in this instance. Owen v. Cheney, 238 So.2d 650 (Fla. 2d DCA 1970).

Appellant's contention that this case presents a meritorious delegation of authority issue is likewise unsound. When chapter 893 went into effect in 1973, it included methaqualone on one of its schedules of controlled substances. Methaqualone was not a controlled substance under the federal law at that time. It was, however, listed in the Federal Register by the United States Drug Enforcement Administration as a substance that should be controlled. Appellant contends that for the legislature to look to a federal agency classification such as this in regulating a substance violates the rule of law announced in State v. Welch, 279 So.2d 11 (Fla.1973), and Freimuth v. State, 272 So.2d 473 (Fla.1972). In those cases we held that the Florida legislature cannot enact a statute which prospectively delegates authority to the federal government by incorporating Future federal statutory or administrative action classifying controlled substances. Clearly, this principle is inapplicable to the case at bar. Here the classification by the federal agency preceded the legislative action and presumably was part of the impetus for controlling the drug. But this is not a case where the legislature attempted to control "any other drug to which the drug abuse laws of the United States apply . . . ." 272 So.2d at 474.

The final issue on appeal is whether the appellant was properly charged with a felony. Section 893.13, Florida Statutes (1975), which defines "prohibited acts" under the controlled substances law, does not explicitly cover the conduct of a medical doctor who issues a prescription for a controlled substance outside the course of his professional practice. Section 893.13(1) (a) makes it unlawful for any person to "sell, manufacture, or deliver, a controlled substance." Subsection (1)(a) goes on to indicate the degree of offense committed by a violator, depending on which controlled substance is involved. By virtue of its classification, sale or delivery of methaqualone is a felony. Section 893.13(2)(a)(1) makes it unlawful for any person to "distribute or dispense" a controlled substance, and section 893.13(2)(b) makes this offense a misdemeanor. Appellant would have us conclude that on the face of the statute it is unclear whether either subsection (1) or subsection (2) was intended to cover the conduct at issue and the statute is therefore inapplicable or, at most, that a physician can be convicted only of a misdemeanor under 893.13(2).

We reject the argument that the legislature has not made clear an intent to penalize the instant conduct at all. A statute should be construed so as to give effect to each and all of its provisions. State v. Gale Distributors, Inc., 349 So.2d 150 (Fla.1977); Atlantic Coast Line R. Co. v. State, 73 Fla. 609, 74 So. 595 (1917). Section 893.05(1) provides that a medical doctor may "in good faith and in the course of his professional practice only . . . prescribe, administer, dispense, mix, or otherwise prepare a controlled substance . . . ." This proviso would not be in the act unless it were intended that a prescription given in bad faith, or outside the doctor's professional practice, be penalized. This provision is "a necessary exception to the imposition of criminal penalties for the conduct proscribed under Section 893.13." State v. Weeks, 335 So.2d 274 (Fla.1976).

The information filed against appellant charged that he "did unlawfully and feloneously sell or deliver (quaaludes) . . . by means of a prescription issued in bad faith and not in the course of professional practice. . . ." Through his plea of nolo contendere, appellant has conceded that he did in fact so sell or deliver quaaludes. It appears clear to us that such conduct constitutes a violation of 891.13(1)(a). The admitted facts do form an accurate basis for the charging of this felony. Status as a physician does not in some way immunize one from charges of selling. Rather, whether the physician's or other individual's conduct amounts to selling or merely dispensing is a function of the particular facts of the case. Appellant argues that this result is irrational in that it is susceptible to both felony and misdemeanor penalties, to be finally determined at the discretion of the prosecutor. The fact that certain conduct might violate more than one criminal provision does not necessarily render it invalid. Fayerweather v. State, 332 So.2d 21 (Fla.1976). Appellant, as a physician, is capable of violating either or both of the provisions, 893.13(1) and 893.13(2).

We find that section 893.13 is constitutional and that the information did properly charge the appellant with felonious violation of section 893.13(1). The judgment of the trial court is affirmed.

It is so ordered.

ENGLAND, C. J., and ADKINS, SUNDBERG and ALDERMAN, JJ., concur.

BOYD, J., concurs in part and dissents in part with an opinion.

BOYD, Justice, concurring in part and dissenting in part.

I concur with that portion of the Court's opinion that finds the statute to be constitutional. I dissent, however, from the majority's decision holding that the appellant was properly charged with and convicted of a felony.

Section 893.13, Florida Statutes (1975), which defines "prohibited acts" under the controlled substances law, does not explicitly cover the conduct of a medical doctor who issues a prescription for a controlled substance in bad faith and outside the course of his professional practice. I agree, however, for the reasons stated by the majority, that such conduct is intended to be punishable under section 893.13. The question the appellant presents is whether it is punishable as a felony or as a misdemeanor.

Section 893.13(1)(a) makes it unlawful for any person to "sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance." Subsection (1)(a) goes on to indicate the degree of offense committed by a violator, depending on which controlled substance is involved....