STATE OF FLORIDA, APPELLANT,
v.
STEPHEN FALKENSTEIN AND LISA BROWN, APPELLEES
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The Florida Fourth District Court of Appeal reversed the trial court's dismissal of drug trafficking charges against Falkenstein and Brown, holding that the aggregate weight of hydrocodone tablets (not the amount of active ingredient per individual tablet) is the determinative weight for prosecution under Florida's drug trafficking statute.
The court held that where hydrocodone has been mixed or commingled with a substance capable of being consumed along with it or facilitating its use, marketing, and access, the aggregate weight of the tablets seized—not the amount of hydrocodone per dosage unit—is the determinative weight for drug trafficking prosecution under section 893.135(1)(e)1.
[1] For purposes of prosecution under Florida Statutes section 893.135(1)(c)1, the aggregate weight of tablets containing hydrocodone, rather than the amount of hydrocodone p…
[2] The aggregate weight of tablets seized is the determinative weight for prosecution under Florida Statutes section 893.135(1)(c)1 when the hydrocodone has been mixed or co…
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Join FLexlaw to unlock all legal intelligence“where the hydrocodone has been mixed or commingled with a substance which is capable of being consumed along with the hydrocodone, or which facilitates the use, marketing and access of the hydrocodone, the aggregate weight of the tablets seized, and not the amount of hydrocodone per dosage unit, is the determinative weight for prosecution under section 893.135(1)(e)1”
Establishes the court's holding on the proper measure for drug trafficking charges involving commingled controlled substances
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Join FLexlaw to unlock all legal intelligenceAppellees were charged with trafficking in hydrocodone and grand theft. They possessed 1500 Vicodin tablets containing an aggregate of 11.25 grams of …
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SHAHOOD, J.
The state appeals the dismissal of drug trafficking charges against appellees, Stephen Falkenstein and Lisa Brown. We reverse.
Appellees were charged with Trafficking in Hydrocodone in violation of Florida Statute section 893.135(£ )(e)l, and Grand Theft. They moved to dismiss the charges arguing that although they were in possession of 1500 Vicodin tablets (a prescription pain reliever), which contained an aggregate amount of 11.25 grams of hydrocodone, they could not be prosecuted under section 893.135 since each individual tablet contained less than four grams of the controlled substance. The trial court granted the motions to dismiss based on the rule of statutory construction that when language is susceptible of differing constructions, it shall be construed strictly, in favor of the accused. The court stated that it was therefore compelled to follow State v. Holland, 689 So. 2d 1268 (Fla. 1st DCA 1997).
We recently rejected a similar argument and conclusion in Johnson v. State, No. 97-3013,-So. 2d-, 1998 WL 746142 (Fla. 4th DCA Oct. 28, 1998) and State v. Hayes, No. 97-2014, 720 So. 2d 1095, 1998 WL 646655 (Fla. 4th DCA Sept. 23, 1998). In those cases, we held that where the hydroeo-done has been mixed or commingled with a substance which is capable of being consumed along with the hydrocodone, or which facilitates the use, marketing and access of the hydrocodone, the aggregate weight of the tablets seized, and not the amount of hydro-codone per dosage unit, is the determinative weight for prosecution under section 893.135(Z )(e)l, Florida Statutes (1996). Hayes (citing Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), superseded by statute on other grounds as stated in, United States v. Turner, 59 F. 3d 481 (4th Cir.1995)); Johnson; see also State v. Baxley, 684 So. 2d 831 (Fla. 5th DCA 1996), rev. denied, 694 So. 2d 737 (Fla.1997).
Accordingly, we reverse the order of dismissal and remand with directions that the charges be reinstated. As in Hayes and Johnson, we certify conflict with the First District’s holding in Holland and the Second District’s holding in State v. Perry, 716 So. 2d 327, 23 Fla. L. Weekly D1908 (Fla. 2d DCA Aug.14,1998).
REVERSED AND REMANDED.
DELL and FARMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Chapman v. United States, 500 U.S. 453 (U.S. 1991)
- State v. Baxley, 684 So. 2d 831 (Fla. 5th DCA 1996)
- State v. Hayes, 720 So. 2d 1095 (Fla. 4th DCA 1998)
- The Agency FOR Health Care Admin. v. Palm Springs Gen. Hosp., Inc., 689 So. 2d 1268 (Fla. 1st DCA 1997)
- State v. Holland, 689 So. 2d 1268 (Fla. 1st DCA 1997)
- Hudson v. State Farm Mut. Auto. Ins. Co., 716 So. 2d 327 (Fla. 2d DCA 1998)
- State v. Perry, 716 So. 2d 327 (Fla. 2d DCA 1998)