First District Court of Appeal
301 S. Martin Luther King Blvd. Tallahassee, FL 32399
(850) 487-1000
Circuits: 1st, 2nd, 3rd, 4th, 8th and 14th Circuits
DISTRICT COURT OF APPEAL, FIRST DISTRICT
STATE OF FLORIDA
(Revised January 6, 2011)
NOTICE TO ATTORNEYS AND PARTIES
Valid Prescription
Holdings: The District Court of Appeal, Wolf, J., held that:1 as a matter of first impression, prescription defense is available to innocent possessor of controlled substance who has a legally recognized reason for possession of drugs prescribed to another individual;2 issue of whether defendant was entitled to prescription defense was a jury question; and3 failure to instruct jury on prescription defense was fundamental error.
McCoy v. State, 56 So. 3d 37 (Fla. Dist. Ct. App. 2010)
Medical Necessity
Kenneth Jenks inherited hemophilia from his mother, and contracted the acquired immune deficiency syndrome (AIDS) virus from a blood transfusion in 1980. He unknowingly passed it to his wife, Barbara Jenks. Mrs. Jenks' health began to decline rapidly. Her weight dropped from 150 to 112 pounds during a three week period as a result of constant vomiting, and she was hospitalized at least six times for two to three weeks at a time. Although she had been prescribed over a half-dozen oral medications for nausea, none of them worked. When given shots for nausea, she was left in a stupor and unable to function. Likewise, when Mr. Jenks started AZT treatment, he was not able to eat because the medication left him constantly nauseous. He also lost weight, although not as dramatically as his wife. When the Jenks began participating in a support group sponsored by the Bay County Health Department, a group member told them how marijuana had helped him. Although initially reluctant, Mr. and Mrs. Jenks tried marijuana and found that they were able to retain their AIDS medications, eat, gain weight, maintain their health, and stay out of the hospital. They asked their treating physician about prescribing the drug, but were unable to obtain a legal prescription. The Jenks decided to grow two marijuana plants to insure its availability, avoid the expense of buying it on the street, and reduce the possibility of arrest.
Jenks v. State, 582 So. 2d 676, 677 (Fla. Dist. Ct. App. 1991)
“Actual possession” exists where a defendant has physical possession of contraband and knowledge of such possession.
State v. Williams, 742 So. 2d 509, 511 (Fla. Dist. Ct. App. 1999)
“Constructive possession” exists where a defendant does not have actual physical possession of contraband but knows of its presence on or about his premises and has the ability to exercise and maintain control over the contraband.
State v. Williams, 742 So. 2d 509, 511 (Fla. Dist. Ct. App. 1999)
