578 S.W.2d 64 | Mo. Ct. App. | 1979
Movant appeals from the denial of his Rule 27.26 motion. A jury found him guilty of uttering a forged prescription for Phen-metrazine under § 195.170(5), RSMo. (Supp. 1975), the penalty section being § 195.-200(1). The court sentenced movant under the Second Offender Act to serve a term of two years.
As movant’s sole point on appeal, he states that the trial court erred in denying his motion, “because the information was fatally defective in that it listed Phenme-trazine as a Schedule II controlled substance and charged movant-appellant with a violation of RSMo., § 195.170(5) (1969) when Phenmetrazine is a Schedule III controlled substance and movant could have only been charged with a violation of RSMo., § 195.250 (1969).” We find no merit in movant’s contention.
In a 27.26 motion we must affirm the findings, conclusions, and judgment of the trial court unless they are “clearly erroneous.” Rule 27.26(j); Maggard v. State, 471 S.W.2d 161, 166 (Mo.1971); Bonner v. State, 535 S.W.2d 289, 297 (Mo.App.1976).
Appellant correctly states that by a statute passed in 1970, Phenmetrazine was originally listed as a Schedule III controlled substance. Section 195.017(6)(2)(b), RSMo. (Supp.1975). However, prior to the offense in question, the Federal Director of the Bureau of Narcotics and Dangerous Drugs rescheduled Phenmetrazine from Schedule III to Schedule II (36 Fed.Reg. 20, 686 (1971)) and subsequent to that federal action, the Missouri Division of Health registered with the Secretary of State new Schedules which listed Phenmetrazine as a Schedule II controlled substance.
Appellant argues that the Division of Health has no authority to “shift” a sub
This was not an improper delegation of legislative authority. See State v. Davis, 450 S.W.2d 168, 170 (Mo.1970); State v. Bridges, 398 S.W.2d 1, 5 (Mo. banc 1966).
Several cases refer to Phenmetrazine as a Schedule II controlled substance. See State v. Holden, 548 S.W.2d 194, 195 (Mo.App.1977); State v. Williams, 546 S.W.2d 533, 537 (Mo.App.1977); State v. Mulkey, 523 S.W.2d 145, 147 (Mo.App.1975).
Affirmed.