Ex parte Stephens
Decision Date | 10 April 1987 |
Citation | 512 So.2d 786 |
Parties | Ex parte James W. STEPHENS. (Re: James W. Stephens v. State of Alabama) 85-1389. |
Court | Alabama Supreme Court |
Ira De Ment and Ronald W. Wise, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
We granted the writ of certiorari to the Court of Criminal Appeals on the issue of whether that court's decision, 512 So.2d 782 (Ala.Crim.App.1986), was in conflict with prior decisions of this Court in holding that the trial court did not err in refusing the petitioner's written requested charge as to a lesser included offense.
The petitioner, James W. Stephens, was convicted under six separate indictments for the sale of codeine and dextropropoxyphene in violation of Code 1975, § 20-2-70. This conviction was the culmination of a Montgomery Police Department investigation of Stephens for dispensing drugs from Sav-Mart Pharmacy without proper prescriptions.
At trial, a number of state witnesses testified that Stephens sold them the controlled substances without a prescription or without oral authorization from the prescribing physician's office when the prescription stated "non-refillable." There was also testimony to the effect that a large number of drugs were missing from the Sav-Mart Pharmacy and could not be accounted for through Stephens's pharmaceutical records. Stephens maintains as his defense that he sold drugs to these people, but only after he received oral authorization from their physicians.
In the defendant's requested jury charge No. 14, he asked the trial court to charge the jury on the offense of failure to keep proper records, a misdemeanor, which he claimed was a lesser included offense as to the offense charged. This request was refused. That requested jury charge No. 14 read as follows:
Stephens's counsel objected to the court's refusal to give that charge:
Under Code 1975, §§ 20-2-58(c) and 20-2-70, it is a felony for a pharmacist to sell the controlled substances referred to in Stephens's indictments, codeine and dextropropoxyphene, without a written or oral prescription. In addition, even if there is a prescription, the pharmacist is prohibited from filling or refilling it more than six months after the date thereof or refilling it more than five times, unless it is renewed by the prescribing physician. Code 1975, § 20-2-58(c).
Under Code 1975, §§ 20-2-71(a)(3) and 34-23-70(i) and (m), it is a misdemeanor for a pharmacist as a first-time offender to fail to keep inventories and records of all controlled substances and a prescription file for schedule III, IV, and V controlled substances. (Codeine is a schedule III controlled substance and dextropropoxyphene is a schedule IV controlled substance.)
The first question we must address is whether the failure to keep records of prescriptions is a lesser included offense of the offense charged--unlawful sale of controlled substances without a prescription. We hold that it is.
Section 13A-1-9, Code 1975, defines a "lesser included offense" as follows:
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Roberts v. State
...So.2d 445 (Ala.Crim.App.1984) ].” Stephens v. State, 512 So.2d 782, 785 (Ala.Crim.App.1986), reversed on other grounds, Ex parte Stephens, 512 So.2d 786 (Ala.1987). See also Eathorne v. State, 448 So.2d at 449 (“The mere fact that Eathorne was suffering from feelings of guilt or worthlessne......
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Bradley v. State, CR-03-0453.
...Long, 600 So.2d 982 (Ala.1992), overruled in part on other grounds by Ex parte Edwards, 816 So.2d 98, 108 (Ala.2001); Ex parte Stephens, 512 So.2d 786, 787-89 (Ala.1987); Ex parte Oliver, 518 So.2d 705, 705-07 (Ala.1987); Crawford v. State, 886 So.2d 846 (Ala. Crim.App.2003); Culpepper v. S......
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Childers v. State
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Bradley v. State, No. CR-03-0453 (AL 1/7/2005), CR-03-0453.
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