People v. Berry

• Decision Date: 06 May 1983
• Docket Number: Docket No. 60324
• Citation: 123 Mich.App. 237,333 N.W.2d 234
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene Arnold BERRY, Defendant-Appellant. 123 Mich.App. 237, 333 N.W.2d 234
• Court: Court of Appeal of Michigan — District of US

Page 234

333 N.W.2d 234

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene Arnold BERRY, Defendant-Appellant.

Docket No. 60324.

123 Mich.App. 237, 333 N.W.2d 234

Court of Appeals of Michigan.

Submitted Jan. 6, 1983.

Decided Feb. 10, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 238] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate, Asst. Pros. Atty., and Janice M. Joyce Bartee, Asst. Pros. Atty., for the people.

Linda D. Ashford, Detroit, for defendant-appellant.

Before ALLEN, P.J., and BRONSON and WAHLS, JJ.

PER CURIAM.

Defendant was convicted after a bench trial of possession of cocaine, possession of pentazocine and possession of diazepan, M.C.L. Sec. 333.7403; M.S.A. Sec. 14.15(7403). On June 30, 1981, he was sentenced to serve a term of one year's probation in the Detroit House of Correction. Defendant appeals as of right.

Defendant first argues that his convictions must be reversed because the controlled substance provision of the Public Health Code violates the title-object clause of Const.1963, art. 4, Sec. 24. This claim has been rejected by several panels of the Court. See, People v. Kidd, 121 Mich.App. ---, 328 N.W.2d 394 (1982); People v. Swindlehurst, 120 Mich.App. 606, 328 N.W.2d 92 (1982); People v. Ensign (On Rehearing), 112 Mich.App. 286, 315 N.W.2d 570 (1982); People v. Trupiano, 97 Mich.App. 416, 296 N.W.2d 49 (1980).

Defendant next argues that his conviction of possession of pentazocine must be reversed because the Legislature has never declared that the possession of pentazocine is a crime. Pursuant to the authority granted to it under M.C.L. Sec. 333.7215; M.S.A. Sec. 14.15(7215), the State Board of Pharmacy classified pentazocine as a schedule 3 controlled substance. Defendant claims that the provisions of the controlled[123 MICHAPP 239] substances act which allow the State Board of Pharmacy to add substances to the schedule of proscribed substances constitutes an unlawful delegation of the Legislature's power to create criminal offenses to an administrative agency. Members of this Court are divided on the issue. In People v. Uriel, 76 Mich.App. 102, 255 N.W.2d 788 (1977), lv. den. 402 Mich. 851 (1978), the panel upheld the provisions. In People v. Turmon, 117 Mich.App. 345, 323 N.W.2d 698 (1982), a divided panel reached the opposite conclusion. The most recent case on this issue is People v. O'Neal, 122 Mich.App. ---, 333 N.W.2d 56 (1983), which holds the...