333 N.W.2d 234 | Mich. Ct. App. | 1983
PEOPLE
v.
BERRY
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, for the people.
Linda D. Ashford, for defendant.
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 diazepam, MCL 333.7403; MSA 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, § 24. This claim has been rejected by several panels of the Court. See People v Kidd, 121 Mich. App. 92; 328 NW2d 394 (1982); People v Swindlehurst, 120 Mich. App. 606; 328 NW2d 92 (1982); People v Ensign (On Rehearing), 112 Mich. App. 286; 315 NW2d 570 (1982); People v Trupiano, 97 Mich. App. 416; 296 NW2d 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 MCL 333.7215; MSA 14.15(7215), the State Board of Pharmacy classified pentazocine as a schedule 3 controlled substance. Defendant claims that the provisions of the controlled *239 substances act which the 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 NW2d 788 (1977), lv den 402 Mich. 851 (1978), the panel upheld the provisions. In People v Turmon, 117 Mich. App. 345; 323 NW2d 698 (1982), a divided panel reached the opposite conclusion. The most recent case on this issue is People v O'Neal, 122 Mich. App. 370; 333 NW2d 56 (1983), which holds the provisions constitutional. We find the O'Neal opinion thorough and persuasive and for the reasons stated therein conclude that the delegation to the Board of Pharmacy is constitutional.
Affirmed.
