Hall v. Florida Bd. of Pharmacy

• Decision Date: 28 July 1965
• Docket Number: No. 33119,33119
• Citation: 177 So.2d 833
• Parties: John M. HALL, Petitioner, v. FLORIDA BOARD OF PHARMACY, Respondent.
• Court: Florida Supreme Court

Page 833

177 So.2d 833

John M. HALL, Petitioner, v. FLORIDA BOARD OF PHARMACY, Respondent.

No. 33119.

Supreme Court of Florida.

July 28, 1965.

Doyle E. Carlton, of Carton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for petitioner.

Earl Faircloth, Atty. Gen., and Edward S. Jaffry, Asst. Atty. Gen., for respondent.

ROBERTS, Justice.

This writ of conflict certiorari brings for review a decision of the District Court of Appeal, Second District, in Florida Board of Pharmacy v. Hall, 157 So.2d 824, which reversed a decision by the Circuit Court and reinstated the decision of the Florida Board of Pharmacy finding Hall guilty of violating § 465.18(2), Florida Statutes, F.S.A., suspending his license for a period of three months, and placing him on probation for one year. The history, background essential facts and questions of law are set forth in the opinion cited above.

The decision of the District Court of Appeal here under review was in direct conflict with PETERS V. BROWN, FLA.1951, 55 SO.2D 334,¹ and DUPUY V. STATE, 141 SO.2D 825 (FLA.APP. 3RD DIST. 1962)¹. The misapplication of Regero v. Daugherty, Fla.1953, 1953, 69 So.2d 178, in this case creates a legal result in conflict with Gilcrease v. State, 94 Fla. 1189, 1928, 116 So. 501, and leads to confusion amongst members of the Bench and Bar. This court has jurisdiction under Section 4(2), Article V, Constitution of Florida, F.S.A.

The first question presented by the appellant (Florida Board of Pharmacy) in the District Court involved whether or not the defense of entrapment was available to Hall and upon which defense he had partially relied in the first review by the Circuit Court, that court having allowed the defense of entrapment and having thereafter on rehearing reversed the decision of the Board of Pharmacy for that reason. The District Court of Appeal properly ruled that the defense of entrapment was not effective. That part of the decision is approved by this court under the authority of Mitchell v. Gillespie, Fla.1965, 172 So.2d 819, and Mitchell v. Gillespie, District Court of Appeal, First District, 164 So.2d 867. The matter, however, does not end here.

The appellee Hall advanced other points in support of the Circuit Court judgment which the District Court refused to consider because the appellee did not cross-assign error to the judgment he was supporting as appellee; the language of the District Court is:

'The appellee has also set out a point on appeal to the effect that the evidence does not establish that the appellee violated Sec. 465.18(2), Fla.Stat., F.S.A. but in view of the fact that the appellee did not cross-assign error within ten days after the appellant had filed its assignments, this court may not consider the same',

citing Regero v. Daugherty, Fla.1953, 69 So.2d 178, which in turn relied on Fla. Nat'l Bank v. Kassewitz, 156 Fla. 761, 25 So.2d 271. These cases however do not apply as they dealt with situations where the appellee had suffered adverse rulings by the court under review. Here, the Circuit Court, in his order on rehearing, ruled in favor of the appellee on the sole question of entrapment and did not make any ruling adverse to the appellee on anything. Therefore the only interest of the appellee was to affirm the judgment of the Circuit Court which, as stated, was favorable to him. Florida Appellate Rule 3.5(b), 31 F.S.A., likewise refers only to adverse rulings.

An assignment of error is the appellant's declaration or complaint against the trial judge charging error in the acts of the lower court which assignments are the basic grounds for reversal. Assignments of error are required to be filed by the appellant or an appellee who seeks reversal of the lower court, but not by appellee who seeks no affirmative relief on appeal. Gilcrease v. State, 94 Fla. 1189, 116 So. 501, held:

'The sole predicate for an assignment of error is an incorrect ruling of the trial court on some question of evidentiary, procedural, or pure law presented to him in due course. It should then be assigned for the purpose of correcting the trial court and arriving at a proper determination of the real issues presented in the controversy. Assigned on any other basis, an assignment is in bad taste, and has no place in the record.' (Emphasis supplied.)

In the absence of a cross appeal or cross-assignment of error the appellee's position is confined to the support of the judgment of the lower court and his position is not even restricted to the reasons advanced by the lower court; he may advance reasons to support the judgment which may differ with those given by the lower court. For the foregoing reasons, he is not required to file assignments that the lower court has erred when his position is that the lower court was correct and was not in error in what it did, even if in error as to its reasoning.

Thus it was error and in conflict with prior decision for the District Court of Appeal to refuse to consider the other questions presented by the appellee (Hall) and which the appellee has brought forward in this certiorari proceeding. In many instances we would at this point return the case to the District Court of Appeal with direction that it consider the additional questions presented but not disposed of in that court. However, because this is a case of long-standing and with the objective of terminating the litigation, we will proceed to the question of whether or not the conduct of Mrs. Hopson (Hall's clerk) constituted a violation of § 465.18(2), Florida Statutes, F.S.A.

At the outset it is noteworthy that Chapter 465 relating to Pharmacists and its definitions in 465.031, prior to the 1961 session of the Legislature, did not contain definitions for the words 'fill', 'compound', and 'dispense'. This deficiency was corrected by Chapter 61-338, Laws of Florida enacted in 1961 session of the Legislature. The offenses charged are alleged to have occurred between November 30, 1960 and February...