McLean v. State

• Decision Date: 25 August 1975
• Citation: 527 S.W.2d 76
• Parties: Robert McLEAN, Petitioner, v. STATE of Tennessee, Respondent.
• Court: Tennessee Supreme Court

Page 76

527 S.W.2d 76

Robert McLEAN, Petitioner, v. STATE of Tennessee, Respondent.

Supreme Court of Tennessee.

Aug. 25, 1975.

William S. Todd, Kingsport, for petitioner.

Tom Jennings, Asst. Atty. Gen., for respondent; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.

OPINION

HARBISON, Justice.

Petitioner, Robert McLean, was convicted in the Criminal Court of Sullivan County, Tennessee on two charges of selling legend drugs, the sales having allegedly occurred on October 23, and November 2, 1972. He received in each case a fine of $500 and a sentence of confinement in the county jail of eleven months, twenty-nine days. These convictions were based upon violations of T.C.A. § 52--1204. Petitioner was simultaneously indicted, tried and convicted for selling a controlled substance in violation of T.C.A. § 52--1432(a) for which he was fined $1000 and sentenced to serve three years in the state penitentiary. All of the sentences were ordered to run consecutively.

Petitioner appealed his convictions to the Court of Criminal Appeals. In a divided decision, the Court of Criminal Appeals affirmed one conviction of the petitioner for selling a legend drug and affirmed the conviction for selling a controlled substance; however, it dismissed the second charge of selling a legend drug, upon the ground that this had occurred in one and the same transaction as the sale of the controlled substance.

Petitioner filed a petition for certiorari in this Court, which was granted. The State did not file a petition for certiorari from the action of the Court of Criminal Appeals in dismissing one of the legend drug charges, nor did it assign error after the Court had granted the petition filed on behalf of McLean, as it might have done. T.C.A. § 27--823. Accordingly, the judgment of the Court of Criminal Appeals dismissing one of the legend drug charges has become final and is not before us.

In addition to the two legend drug indictments, petitioner was indicted upon charges of feloniously selling and feloniously possessing with intent to sell a controlled substance, barbiturate derivative, this sale having occurred on November 2, 1972. The indictment does not list the schedule of the Tennessee Drug Control Act for which violation was claimed, but in his instructions to the jury the trial court charged that the controlled substance was classified under Schedule III (T.C.A. § 52--1417), and he instructed the jury as to the penalty for violation of this schedule, being not less than three nor more than eight years imprisonment and a fine of not more than $10,000. T.C.A. § 52--1432(a)(1)(C).

The facts of the case were sharply disputed. It is uncontroverted, however, that petitioner was a licensed, registered pharmacist, working at certain pharmacies in Kingsport, Tennessee.

By preliminary motion petition challenged the constitutionality of the statute governing the sale of legend drugs, T.C.A. § 52--1204. His motion to quash the indictment was overruled, and he continued to assert the alleged unconstitutionality of this statute in the Court of Criminal Appeals, which sustained the statute as against charges that it was unconstitutionally vague and indefinite and that there was an unlawful delegation of legislative power in referring to federal law for a definition of legend drugs. Agreeing with the Court of Criminal Appeals that the statute did not contain any constitutional infirmity, we limited our grant of certiorari to the other issues now before us.

Petitioner made no attack whatever upon the indictment for the sale of the controlled substance, and did not raise any question as to whether the provisions of T.C.A. § 52--1432(a) were or were not applicable to licensed, registered pharmacists. This question was raised for the first time in the dissenting opinion filed in the Court of Criminal Appeals, and this Court granted certiorari for the purpose of examining the subject. It is our opinion that the provisions of T.C.A. § 52--1432(a), generally prohibiting the sale or possession with intent to sell controlled substances, are not applicable to registered pharmacists, such as the petitioner, and that the petitioner accordingly was indicted, tried and convicted under an inapplicable statute.

T.C.A. § 52--1432 generally forbids any person to manufacture, deliver, sell or possess controlled substances as listed in the various schedules of the 1971 Drug Control Act, codified under previous code sections. It also forbids any person to possess these substances with intent to manufacture, deliver or sell and prescribes various penalties, including separate and differing penalties respecting drugs classified under the different schedules. At its beginning, however, this section specifically states that its prohibition apply to all sales, deliveries, etc. 'except as authorized' by other portions of the 1971 Drug Control Act (the entire Act being codified as T.C.A. §§ 52--1408--1448).

T.C.A. §§ 52--1424 through 1431 make specific provisions for pharmacists and professional persons licensed by the various boards dealing with the healing arts. T.C.A. § 52--1424 provides as follows:

'The board of pharmacy and the appropriate occupational or professional licensing board governing persons who may legally dispense controlled substances may promulgate rules and charge reasonable fees relating to the registration and control of the manufacture, distribution and dispensing of controlled substances within this state.'

The next section provides that every person who manufactures, distributes or dispenses any controlled substance within the state or who proposes to engage in the manufacture, distribution or dispensing of such substances, must obtain annually a registration issued by the Board of Pharmacy and the appropriate occupational or professional licensing board. T.C.A. § 52--1425(b), insofar as here pertinent, provides:

'Persons registered by the board of pharmacy . . . may possess, manufacture, distribute or dispense those substances to the extent authorized by their registration and in conformity with the other provisions of this section.'

Subsection (e) of the same section provides that a separate registration is required at each principal place of business or professional practice where an applicant manufactures, distributes, or dispenses controlled substances.

Of course, the practice of pharmacy and the licensure of the members of that profession are defined and dealt with in detail by separate statutes, T.C.A. § 63--1001 et seq. The Drug Control Act, in its definition section expressly refers to a 'pharmacist' as being a person duly licensed by state law. T.C.A. § 52--1409(y).

There is no issue in the present case but that the petitioner was duly licensed, and there is no claim that he had failed to comply with any of the registration statutes entitling him to possess and dispense controlled substances as a pharmacist.

Subsequent sections of the Drug Control Act deal with criteria for the issuance of registration to pharmacists, physicians and other licensed persons, for the suspension and revocation of their registration, for the keeping of various records and inventories, and for distribution among registrants. T.C.A. § 52--1431 deals generally with prescription requirements, and subsection (c) of that section is as follows:

'Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, a controlled substance included in schedule III or IV, which is a prescription drug as determined under chapter 13 of this title, shall not be dispensed without a written or oral prescription of a practitioner. The prescription shall not be filled or refilled more than six (6) months after the date thereof or be refilled more than five (5) times, unless renewed by the practitioner.'

Other portions of T.C.A. § 52--1431 deal with the dispensing of drugs under Schedules II and V.

There seems to be no question on this record but that the petitioner was at all pertinent times subject to the terms and provisions of T.C.A. §§ 52--1424 through 54--1431.

Portions of the 1971 Drug Control Law contain specific penalties for registrants. T.C.A. § 52--1435(a) expressly makes it unlawful for any person who is subject to T.C.A. §§ 52--1424 through 52--1431 to distribute or dispense a controlled substance in violation of § 52--1431 (insofar as here pertinent, selling a controlled substance without a prescription from a practitioner). Subsection (b) of T.C.A. § 52--1435 expressly provides as follows:

'Any person who violates this section is guilty of a felony and upon conviction may be imprisoned for not less than two (2) years nor more than then (10) years, or fined not more than twenty thousand dollars ($20,000), or both.'

It seems clear to us that the petitioner should properly have been indicted and tried for violation of T.C.A. § 52--1431, and sentenced according to T.C.A. § 52--1435. The statute under which he was indicted and convicted pertains to the public generally, but the code sections last cited deal specifically with pharmacists and other registrants, and prescribe entirely different penalties and sanctions from those pertaining to the general public.

It accordingly appears to us that the petitioner, respecting the controlled substance charge against him, was tried and convicted under an inappropriate statute, and his conviction for violation of T.C.A. § 52--1432(a) cannot stand.

A somewhat similar case was presented to the Supreme Court of Iowa in the case of State v. Webb, 261 Iowa 1151, 156 N.W.2d 299 (1968). The defendant there was a licensed pharmacist and allegedly made sales of certain prescription drugs without a prescription.

Certain statutes of the state prohibited pharmacists from making such sales without a prescription and provided specific criminal penalties therefor. A new general drug control act, however, contained a general prohibition against the sale of prescription drugs,...