92-KH-0367 | La. | Mar 26, 1992
STATE ex rel. David A. MARKS
v.
The Hon. E. Woody THOMPSON, Judge Fourteenth Judicial District Court Parish of Calcasieu.
Supreme Court of Louisiana.
*194 PER CURIAM:
Relator filed for post conviction relief in the Fourteenth Judicial District on grounds that his sentence of seventeen and one-half (17 ½) years' imprisonment at hard labor for the crime of distributing Dilaudid (Hydromorphone) in violation of La.R.S. 40:967(A)(1) is illegal. Relying on the decision in State v. Jenkins, 573 So. 2d 218" court="La. Ct. App." date_filed="1990-12-12" href="https://app.midpage.ai/document/state-v-jenkins-1116358?utm_source=webapp" opinion_id="1116358">573 So. 2d 218 (La.App. 5th Cir.1990), and dicta in State v. Cutrera, 558 So. 2d 611" court="La. Ct. App." date_filed="1990-02-21" href="https://app.midpage.ai/document/state-v-cutrera-1823605?utm_source=webapp" opinion_id="1823605">558 So. 2d 611, n. 1 (La.App. 1st Cir.1990), he argued that Dilaudid is a non-narcotic drug for purposes of sentencing under La.R.S. 40:967(B) and that he therefore should have received a term of imprisonment no greater than ten years at hard labor. The district court denied relief and the Third Circuit affirmed, 591 So. 2d 356" court="La. Ct. App." date_filed="1991-08-23" href="https://app.midpage.ai/document/state-v-marks-7597401?utm_source=webapp" opinion_id="7597401">591 So. 2d 356, expressly disagreeing with the First and Fifth Circuits on this point. We granted relator's application to resolve the conflict in the circuits and affirm.
La.R.S. 40:964 Schedule II(A)(1)(1) lists Dilaudid according to its pharmacological properties as a derivative of opium, along with other derivatives such as codeine and morphine. Dilaudid is therefore a narcotic drug within the definition provided by La.R.S. 40:961(23), which encompasses opium, coca leaves, and opiates, and their derivatives. Relator thus faced a penalty range of five to thirty years' imprisonment at hard labor and his sentence is not illegal. La.R.S. 40:967(B)(1). State v. Jenkins, 573 So. 2d 218 (La.App. 5th Cir. 1990), is overruled in this regard and the discussion in Cutrera treating distribution of Dilaudid as a ten-year felony offense is disapproved as an incorrect statement of law.
JUDGMENT AFFIRMED.