State v. Jones, s. 89-2127

Decision Date23 July 1990
Docket NumberNos. 89-2127,89-2128 and 89-2232,s. 89-2127
Citation565 So.2d 788
Parties15 Fla. L. Weekly D1890 STATE of Florida, Appellant, v. Darius JONES, Charles James Cotton, Booker T. Robinson, Appellees.
CourtFlorida District Court of Appeals

Robert A. Butterworth, Atty. Gen., Virlindia A. Sample, Asst. Atty. Gen., for appellant.

Barbara M. Linthicum, Public Defender, Nancy L. Showalter, Asst. Public Defender, for appellees.

WENTWORTH, Judge.

The state seeks review of an order dismissing a charge of possession of an imitation controlled substance with intent to sell, as follows:

Darius Jones, Defendant, seeks dismissal ... of the Information charging him with violation of Florida Statute sec. 817.564(3).

... Defendant is entitled to dismissal of this charge based upon the undisputed facts of this case.

... Officer Neal Williams observed the Defendant engaging in an ostensible drug transaction. Upon making contact with Jones, the officer saw two rocks of suspected 'crack' cocaine near Defendant's feet and found one in his pocket.... Subsequent chemical analysis determined that the rocks were not cocaine or any other controlled substance. The rocks were indeed rocks, in the generic sense of the word.

. . . . .

A careful reading of subsection (1) reveals that the statute is not applicable to the rocks possessed by the Defendant. The rocks are not in and of themselves 'subject to abuse' as required by that subsection.... This conclusion is further buttressed by ... testimony before the Senate Judiciary Committee that this statute was designed to criminalize the manufacture and distribution of chemical compounds which were not illegal or controlled substances, but which were marketed as or represented to be controlled substances.1 (1. Senator Myers advised the committee that persons and firms were taking legal compounds, packaging them in pill or capsule form virtually identical to actual illicit drugs, and marketing them (primarily to young people) as illicit 'drugs' that would produce a 'high' or similar narcotic effect. The user would have to ingest relatively large numbers of these 'fake' drugs to attain a high. Several youths overdosed and died as a result of ingesting a similar, large number of capsules of the actual controlled substance, under the assumption that they were the same as those used previously.)

Section 817.564 reads in pertinent part (emphasis added):

Imitation Controlled Substances Defined; Possession and Distribution Prohibited.--

(1) For the purposes of this section, the term 'imitation controlled substance' means a ... substance in any form whatsoever [I] which is not a controlled substance enumerated in chapter 893, [II] which is subject to abuse, and [III] which:

(a) By overall dosage unit appearance, including color, shape, size, markings, and packaging, or by representations made, would cause the likelihood that such ... substance will be...

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1 cases
  • Drain v. State, 91-749
    • United States
    • Florida District Court of Appeals
    • May 29, 1992
    ...controlled substance "which is subject to abuse" as that phrase is used in section 817.564(1), and was interpreted in State v. Jones, 565 So.2d 788 (Fla. 1st DCA1990). The State traversed the defendant's motion. However, the traverse did not deny that the substance in question was wax and m......
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