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582 SOUTHERN REPORTER, 2d SERIES 676
Kenneth L. JENKS and Barbara J.
STATE of Florida, Appellee.
District Court of Appeal of
Florida, First District.
June 18, 1991.
Defendants were convicted in the
Circuit Court, Bay County, Clinton Foster, J., of
cultivating cannabis and possession of drug
paraphernalia, and they appealed. The District
Court of Appeal, Ervin, J., held that: (1) statute
defining cannabis as Schedule I substance did not
preclude defense of medical necessity, and (2) defendants
established medical necessity defense.
Nimmons, J., dissented.
1. Drugs and Narcotics 78
Statute defining cannabis as
Schedule I substance did not preclude defense of medical
necessity raised by defendant's charged with cultivating
cannabis and possession of drug paraphernalia, who
allegedly used marijuana to treat nausea which they
suffered in connection with their contraction of acquired
immune deficiency syndrome (AIDS). West's F.S.A. §
JENKS v. STATE Fla. 677
Cite as 582 So.2d 676 (Fla.App. 1 Dist. 1991) 2. Drugs and Narcotics 78
Defendants charged with
cultivating cannabis and possession of drug paraphernalia
established medical necessity defense; medical expert and
physician testified that no other drug or treatment was
available that would effectively eliminate or diminish
nausea suffered by defendants, who had contracted
acquired immune deficiency syndrome (AIDS), and
defendants established that if their nausea was not
controlled, their lives were in danger. West's
F.S.A. §§ 893.13, 893.147.
3. Drugs and Narcotics 78
Elements of medical necessity
defense to use of controlled substance are: that
defendant did not intentionally bring about circumstances
which precipitated unlawful act; that defendant could not
accomplish same objective using less offensive
alternative available to defendant; and that evil sought
to be avoided was more heinous than unlawful act
perpetrated to avoid it.
John F. Daniel, of Daniel &
Komarek, Chartered, Panama City, for appellants.
Robert A. Butterworth, Atty.
Gen., and Gypsy Bailey, Asst. Atty. Gen., Tallahassee,
ON MOTION FOR REHEARING
We substitute the following
opinion for Jenks v. State, 16 F.L.W. D1070, 1991 WL
61786 (Fla. 1st DCA Apr. 16, 1991).
Kenneth and Barbara Jenks appeal
their convictions for cultivation of marijuana and
possession of drug paraphernalia, contending that the
trial court erred in refusing to recognize their defense
of medical necessity. We agree and reverse.
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. Like wise, 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.
On March 29, 1990, the Jenks
were arrested and charged with manufacturing
(cultivating) cannabis, pursuant to Section 893.13,
Florida Statutes (1989), and possession of drug
paraphernalia, a violation of Section 893.147, Florida
Statutes (1989). The Jenks admitted to cultivating
the marijuana and advised officers at the scene that they
each had AIDS and used the marijuana to relieve their
The Jenks waived their right to
a jury trial and agreed that the bench trial should
center on their defense of medical necessity.
Because their physician, Thomas Sunnenberg, was not
available to testify, the parties stipulated that Dr.
Sunnenberg's testimony would be, in part:
Defense witness, THOMAS D.
SUNNENBERG, M.D. ... will testify as follows:
* * * * * * * *
8. That he has been unable
to find any effective drug for treating the defendants'
582 SOUTHERN REPORTER, 2d SERIES 678
9. That the nausea is so
debilitating that if it is not controlled, the defendants
10. That if he could
legally prescribe Cannabis Sativa as a drug to control
their nausea he would.
11. That the only drug
that controls their nausea is Cannabis Sativa.
12. That he is presently
seeking access to legal Cannabis Sativa through the Food
and Drug Administration under the Compassionate
Investigational New Drug Program (IND) for the Jenks.
At trial, the defense also presented two expert
witnesses, Robert Randall, who suffers from glaucoma and who
successfully asserted the defense of medical necessity
against a charge of marijuana cultivation in 1976,* and Dr.
Daniel Dansak of Alabama, who has treated over fifty patients
who have used marijuana to alleviate both disease symptoms
and side-effects of medication.
The trial judge rejected the
defense of medical necessity, found the Jenks guilty of
manufacturing marijuana, and withheld adjudication of
guilt, placing the Jenks on one year of unsupervised
probation. He ordered the Jenks to perform 500 hours of
community service, to be discharged only by
"providing care, comfort and concern for each
The necessity defense has been
formulated as follows:
The pressure of natural physical
forces sometimes confronts a person in an emergency with
a choice of two evils: either he may violate the literal
terms of the criminal law and thus produce a harmful
result, or he may comply with those terms and thus
produce a greater or equal or lesser amount of
harm. For reasons of social policy, if the harm
which will result from compliance with the law is greater
than that which will result from violation of it, he is
by virtue of the defense of necessity justified in
W.R. LaFave & A.W. Scott, Jr., 1 Substantive
Criminal Law § 5.4, at 627 (1986) (hereinafter LaFave &
Scott). Or, as stated by Justice Holmes,
"'Detached reflection cannot be expected in the presence
of an uplifted knife.'" Arnolds & Garland, The
Defense of Necessity in Criminal Law: The Right to Choose the
Lesser Evil, 65 J.Crim.L. & Criminology 289, 290 (1974)
(hereinafter Arnolds & Garland) (quoting Brown v. United
States, 256 U.S. 335, 41 S.Ct. 501, 65 L.Ed. 961 (1921)).
Although there is no specific
legislative acceptance of the necessity defense in
Florida, we conclude that the defense was recognized at
common law and that there has been no clearly expressed
legislative rejection of such defense. The
necessity defense was articulated as early as 1551 in
Reninger v. Fagossa, 1 Plowd. 1, 19, 75 Eng.Rep. 1, 29-30
(1551): "[W]here the words of [the law] are broken
to avoid greater inconvenience, or through necessity, or
by compulsion," the law has not been broken.
Arnolds & Garland, at 291. The authors state
that the defense is poorly developed in Anglo-American
jurisprudence because there are so few cases dealing with
it, "probably because these cases are not often
prosecuted." In any event, they indicate that
although there is some disagreement on this, "it
seems clear that necessity was a defense at common
law." Arnolds & Garland, at 290. The
authors cite a number of pre-1776 cases involving the
necessity defense. Arnolds & Garland, at 291 n.
Consequently, we consider that
Florida has adopted the necessity defense pursuant to
Section 2.01, Florida Statutes (1989), which provides:
The common and statute laws of
England which are of a general and not a local nature ...
are declared to be of force in this state; provided, the
said statutes and common law be not inconsistent with the
Constitution and laws of the United States and the acts
of the Legislature of this state.
JENKS v. STATE Fla. 679
Cite as 582 So.2d 676 (Fla.App. 1 Dist. 1991)
The medical-necessity defense is
merely a more particular application of the necessity
defense, See, e.g., LaFave & Scott at § 5.4(c)7, at
631-33; G.E. Torcia, 1 Wharton's Criminal Law § 88
(1978); 22 C.J.S. Criminal Law § 50 (1989). In
fact, in Bavero v. State, 347 So.2d 781 (Fla. 1st DCA
1977), this court recognized the defense of medical
necessity there asserted by a prison escapee.
Accord State v. Alcantaro, 407 So.2d 922, 924 (Fla. 1st
DCA 1981) ("Medical necessity was recognized as an
arguable defense by this court in Bavero v.
State[.]"), review denied, 413 So.2d 875 (Fla.1982).
 Although the state
conceded at oral argument that the necessity defense
exists in Florida's common law, the state nevertheless
contends that Section 893.03, Florida Statutes (1989), is
inconsistent with and therefore precludes the defense in
the case at bar. We disagree. Section
SCHEDULE 1. A substance in
Schedule I has a high potential for abuse and has no
currently accepted medical use in treatment in the United
States and in its use under medical supervision does not
meet accepted safety standards except for such uses
provided for in s. 402.36. The following substances
are controlled in Schedule I:
* * * * * * * *
(Footnote omitted.) However, subsection (1)(d)
aforementioned fact that Schedule I substances have no
currently accepted medical use, the Legislature
recognizes that certain substances are currently accepted
for certain limited medical uses in treatment in the
United States but have a high potential for abuse.
The state argues that section 893.03 permits no
medical uses of marijuana whatsoever. In fact, all that
subsection (1) states is that marijuana is not generally
available for medical use. Subsection (1)(d), however,
clearly indicates that Schedule I substances may be subject
to limited medical uses. It is well established that a
statute should not be construed as abrogating the common law
unless it speaks unequivocally, and should not be interpreted
to displace common law more than is necessary. Carlile
v. Game & Fresh Water Fish Comm'n, 354 So.2d 362, 364
(Fla.1977) (quoting 30 Fla.Jur. Statutes § 130 (rev. ed.
1974); State v. Egan, 287 So.2d 1, 6-7 (Fla.1973); Sullivan
v. Leatherman, 48 So.2d 836, 838 (Fla.1950) (en banc).
We conclude that section 893.03 does not preclude the defense
of medical necessity under the particular facts of this case.
[2, 3] Moreover, we conclude
that the Jenks met their burden of establishing this
defense at trial. The elements of the defense have
previously been addressed by trial courts in United
States v. Randall, 104 Daily Wash.L.Rep. 2249
(Super.Ct.D.C. Nov. 24, 1976), and in Florida in State v.
Mussika, 14 F.L.W. 1 (Fla. 17th Cir.Ct. Dec. 28, 1988),
which both involved the medically necessary use of
marijuana by people with glaucoma. Those elements
are as follows: 1. That the defendant did not
intentionally bring about the circumstance which
precipitated the unlawful act; 2. That the defendant
could not accomplish the same objective using a less
offensive alternative available to the defendant; and 3.
That the evil sought to be avoided was more heinous than
the unlawful act perpetrated to avoid it.
As applied to the case at bar,
the Jenks obviously did not intend to contract AIDS.
Furthermore, the Jenks' medical expert and physician
testified that no drug or treatment is available that
would effectively eliminate or diminish the Jenks'
nausea.* Finally, the Jenks established that if their
nausea was not controlled, their lives were
582 SOUTHERN REPORTER, 2d SERIES 680 in danger.* The state put on no evidence that
contradicted the Jenks, and the trial court had no
authority to reject the witnesses' testimony. Based
upon these facts, we conclude the trial court erred in
reject ing the Jenks' defense and in convicting them as
REVERSED with directions that
judgment of acquittal be entered.
ZEHMER, J., concurs.
NIMMONS, J., dissents without
1. United States v. Randall, 104 Daily Wash.L. Rep.
2249 (Super.Ct.D.C. Nov. 24. 1976).
2. Other pre-1776 cases are cited in Note,
"Necessity: The Right to Present a Recognized
Defense," 21 N.Eng.L.Rev. 779, 781-83 (1985-86).
3. Dr. Sunnenberg testified by stipulation that
"he has been unable to find any effective drug for
treating the defendants' nausea," and that "the
only drug that controls their nausea is Cannabis
Sativa." Dr. Dansak testified that there is a
drug, Raglan, that is "a little more effective than
marijuana," but that it must be given intravenously
in "fairly whopping doses," thus creating
problems with infections, particularly in AIDS patients.
4. The Jenks described their constant vomiting and
weight loss at the hearing. Dr. Sunnenberg stated
in his stipulated testimony that his patients'
"nausea is so debilitating that if it is not
controlled, the defendants could die."
589 SOUTHERN REPORTER, 2d SERIES 292 SUPREME COURT Docket Appeal
Title Number Date Disposition and
Jenks 78165 10/8/91 Rev.
DCA 582 So.2d 676
Review of this decision was denied by the Supreme Court
of Florida on October 8, 1991, affirming the decision of
the Florida District Court of Appeals for the First