State v. Boley

Dec 19, 1973

No. 43531

Versions:287 So. 2d 668

1973 Fla. LEXIS 4075

Concurrence Opinion

ADKINS, Justice

(concurring specially):

The primary question involved is whether an information charging a violation of Fla.Stat. § 404.15(1), F.S.A., must allege the negative of the misdemeanor exceptions in the statute, that is:

(1) The quantity of marijuana involved;

(2) The consideration for delivery;

(3) That the accused has been previously convicted of a violation of the drug abuse law, in order to charge felonious delivery of cannabis.

In my opinion, the State is not required to negate a statutory exception in an information. See Crooke v. Van Pelt, 76 Fla. 20, 79 So. 166 (Fla.1918); Goff v. State, 60 Fla. 17, 53 So. 327 (1910); State v. Kahler, 232 So.2d 166 (Fla.1970); Fla. Stat. § 404.13, F.S.A.; Salas v. State, 246 So.2d 621 (Fla.App.3d, 1971). Therefore, the decision of the District Court of Ap*669peal is in conflict with the above-cited decisions and should be quashed.

However, I abide by the judgment of this Court in State v. Collins, 276 So.2d 170 (Fla.1973) and State v. Carr, 283 So.2d 101 (Fla.1973), and agree to the discharge of the writ.

Lead Opinion

PER CURIAM.

The petition for writ of certiorari directed to the opinion of the District Court of Appeal, Fourth District, reported at 273 So.2d 109 (Fla.1973), reflected apparent jurisdiction in this Court. We issued the writ and have considered this case without oral argument. Upon such further consideration of the matter, we have determined that the cited decisions present no direct conflict as required by Fla.Const., art. V, § 3(b)(3), F.S.A. Therefore, the writ of certiorari must be and is hereby discharged.

It is so ordered.

CARLTON, C. J., and ROBERTS, ERVIN, BOYD, McCAIN and DEKLE, JJ., concur. ADKINS, J., concurring specially, in which ROBERTS, J., concurs.