Opinion
No. 79-1688/T4-689.
August 13, 1980.
Appeal from the Circuit Court, Orange County, Thomas E. Kirkland, J.
Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellant.
Edward R. Kirkland, P.A., Orlando, for appellee.
This is an appeal from two orders dismissing informations which charged the unlawful delivery of controlled substances. By motions pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure, the appellee moved the court to dismiss the informations. He accompanied the motions with his affidavits which said he is a licensed naturopath and that he "prescribed the drugs" in good faith in the course of his professional practice as allowed by section 893.05(1), Florida Statutes (1979).
Had the state not traversed the motion by specifically denying that the appellee fell under the exception of the statute, perhaps the motion should have been granted. However, the state did traverse the motion with sufficient factual matters which dispute the appellee's allegation that he "prescribed [the drugs] in good faith and in the course of his professional practice." The state's traverse says the appellee had been ordered by another circuit judge not to dispense the drugs; that the appellee's federal registration as a person qualified to dispense the drugs had been voluntarily surrendered, and that appellee had lied to a pharmacist about his license and authority to prescribe.
The traverse is sufficient to raise material issues of fact and thus preclude the granting of the (c)(4) motions. State v. Hamlin, 306 So.2d 150 (Fla. 4th DCA 1975).
The orders dismissing the informations are reversed and this cause is remanded for further proceedings.
REVERSED AND REMANDED.
COBB and FRANK D. UPCHURCH, Jr., JJ., concur.