Defendant was convicted of a felony in the Collier County Circuit Court, Charles T. Canton, J., and defendant took a direct appeal. The Supreme Court, Boyd, J., held that (1) statute which explicitly controlled any material containing psilocybin and made possession of the material a Felony was not vague on its face, but where the statute made no mention of psilocybic rnushrooms or of any other psilocybic organic form that grows wild, the statute failed to advise a person of ordinary and common intelligence that such substance was contained in a particular variety of mushroom, and could not be applied constitutionally to defendant, who was not shown to have Criminal knowledge, and (2) where a statement made by defendant when confronted by law enforcement agents was ambiguous and susceptible of innocent explanation as well as being indicative of criminal knowledge, the ambiguities would be resolved in favor of defendant.

Conviction reversed.

England, C. S., and Overton and Sund berg, JJ-, dissented.

1. Drugs and Narcotics ~

Statute which explicitly controlled any material containing psilocybin and made possession of the material a felony was not vague on its face, but where statute made no mention of psilocybe mushrooms or of any other psilocybic organic form that grows wild, statute failed to advise person of ordinary and common in~lligence that such substance was contained in particular variety of mushroom, and could not be ap )lied constitutionally to defendant, who was not shown to have criminal knowledge. West's F.S.A.Const. art. 5, § 2(b)(1); West's F.S.A. §§ 893.01 et seq., 893.03, 893.03 (1)(c)15, 893.13(1)(a)2.

2. Criminal Law ~414

Where statement made by defendant when confronted by law enforcement agents was ambiguous and susceptible of innocent explanation as well as being indic ative of criminal knowledge, ambiguities would be resolved in favor of defendant.

Peter L. Nimkoff and Rosemary S. Mi chael of August, Nimkoff & Pohug, Miami, and John W. Emerson of Treadwell, Emer son & Elkins, Naples; Florida, for appellant.

Robert L. Shevin, Atty. Con. and Richard C. Pippinger, Asst. Atty. Con., Tampa, for appellee.

BOYD, Justice.

This is a direct appeal from a felony conviction in Collier County Circuit Court. The court directly passed on the validity of a state statute's application

We have jurisdiction Article V, Section a(b)(1), Florida Constitution.

Richard Fiske, appellant, was arrested as he emerged from a field in Collier county Found near him was a bag of wild rnushrooms. The mushrooms were taken into the custody of the Collier County Sheriff's Department. After tests, a chemist concluded that they contained psilocybin, a substance controlled by the Florida Comprehensive drug Abuse Prevention and Control Act, Chapter 893, Florida Statutes. Appel lant was tried by jury for possession of the psilocybin, a felony in the third degree, and found guilty Adjudication of guilt was withheld and he was placed on probation.

[1] Appellant raises a number of issues both constitutional and related to errors In his trial. We address only one, raised by him initially in a pretrial motion, because it is dispositive of the appeal. The issue is whether his conviction under the present statute violates the Due Process Clauses of the federal andFlorida Constitutions. We hold that it does.

Section 893.03 Florida Statutes (1975), gives the standards and schedules of substances controlled by the Drug Abuse Act. Subsection (1) is denominated Schedule I. The subsection recites that substances listed in Schedule I have high potential for abuse and no currently accepted medical use in the United States- Section 893.03 (1)(c)(15), part of Schedule I, controls any material which contains a quantity of the hallucinogenic substance 'psilocybin." Section 893.- 13(1)(a)(2) makes possession of psflocybin a felony of the third degree. The statute makes no mention of psilocybic mushrooms or, for that matter, of any other psilocybic organic form that grows wild. If the statute were to specify that psilocybin was con tained in certain identifiable mushrooms and were to name those mushrooms, there- by apprising a prospective defendant that possession of those mushrooms is unlawful, it would not be unconstitutional as applied. The Statute as presently framed, however, gives no information as to what plants may contain psilocybin in its natural state.

More particularly, the statute does not advise a person of ordinary and common intelligence that this substance is contained in a particular variety of mushroom. The statute, therefore, may not be applied constitutionally to appellant. It does not give fair warning that possession of the mushrooms possessed by appellant is a crime. See Paula V. Columbia, 878 U.S 847, 84 8.Ct. 1697, 12-L.Ed.Qd 894(1964); State n Win- tars, 346 502(1 991 (Fla.1977),

There is no vagueness problem with the statute on its face. It explicitly controls any material which contains psilocybin and makes possession of the material a felony. In capsule, pill or similar form the statute may be applied constitutionally for people will be wary of the criminal liabilities of possession of non prescribed drugs ~ their common medicinal forms and will not ordinarily Possess them innocently or without knowing of their content.

[2] The state points to evidence of scien ter in the record. The statement made by appellant when confrorted.by law enforc& mcnt agents is ambiguous and susceptible of innocent explanation as well as being indicative of criminal knowledge. Ambiguities in criminal proceedings are resolved in favor of the accused.

The statute is held to have been applied unconstitutionally in this case. AppellantTs conviction is reversed.

It is so ordered.

ADKINS, HATChettl and ALDERMAN, JJ., concur.

ENGLAND, C. J., and OVERTON and SUNBBERG, Si., dissent..