State v. HayesState v. Hayes
The state appeals the lower court‘s dismissal of an information charging appellee, Kathryn P. Hayes (“Hаyes“), with trafficking in four grams or more of hydrocodone in violation of
Hayes identified herself as an employee from a doctor‘s office and phoned in a fraudulent prescription at a local drug store. After being unable to verify the prescription, the pharmacist alerted the police. Hayes went to pick up the prescription and, when she left the store, the police arrested her and retrieved 40 tablеts of Lorcet, a hydrocodone derivative. She was charged with trafficking in four grams or more of hydrocodone in violation of
4 grams or more of any mоrphine, opium, oxycodone, hydrocodone, hydromorphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroine, as dеscribed in
s. 893.03(1)(b) or(2)(a) , or 4 grams or more of any mixture containing any such substance or mixture,....(Emphasis added). The statute includes drugs described in Schedule I ( § 893.03(1)(b) ), and Schedule II (§ 893.03(2)(a) ), but not those listed in Schedule III (§ 893.03(3) ). Hydrocodone is listed in both Schedule II and Schedule III. It is considered a Schedule II drug if it is found in quantities greater than 300 milligrams per 100 milliliters or 15 milligrams per dosage unit; it is considered a Schedule III drug in quаntities smaller than those amounts.
The issue presented in this case is whether Hayes could be charged with trafficking under
In State v. Baxley, 684 So.2d 831 (Fla. 5th DCA 1996), rev. denied, 694 So.2d 737 (Fla. 1997), the Fifth District answered that question in the affirmative holding that “[i]f the number of tablets aggregates 4 grams or more of hydrocodone or a mixture of hydrocodone, then ... prosecution is proper under
In 1995,
It is clear that the Legislature intended for the state to prosecute traffickers in hydroсodone as zealously as it prosecutes those who traffick in other substances. What remains unclear, however, is which quantities of hydrocodone, оr any mixture thereof, fall within the Schedule II classification, thus activating the trafficking statute, and which retain the Schedule III classification, which is outside the scope of the statute. Although the issue has not been thoroughly addressed in Florida, the United States Supreme Court, interpreting the Federal Sentencing Guidelines in relаtion to Title 21, resolved the issue in 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).
In Chapman, the defendant was convicted of selling 10 sheets of blotter paper containing 1,000 doses of LSD in violation of
Noting that neither the statute nor the sentencing guidelines defined either “mixture” or “substance“, the Chapman court deciphered their meaning within the scheme of the drug laws, by first consulting various dictionaries:
A “mixture” is dеfined to include “a portion of matter consisting of two or more components that do not bear a fixed proportion to one another and that however thoroughly commingled are regarded as retaining a separate existence.” Webster‘s Third New International Dictionary 1449 (1986). A “mixture” may also сonsist of two substances blended together so that the particles of one are diffused among the particles of the other. 9 Oxford English Dictionary 921 (2d ed.1989).
Id. Apрlying these definitions to the blotter papers containing LSD, the court decided that since the drug was dissolved onto the paper, the drug and paper hаd “mixed” or “commingled“, but the LSD had not chemically combined with the paper. Id. Although the two could be separated, they could also be ingested together like cocaine or heroine mixed with cutting agents; therefore, it was logical to include the weight of the paper in calculating the total weight оf the controlled substance. Id. Conversely, the court held that the weights of containers or packaging materials, which clearly do not mix with the drug and are nоt consumable along with the drug, could not logically be included for sentencing purposes. Id.; compare United States v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir.1991) (held that where cocaine was mixed with liquid waste, the gross weight of the unconsumable or unusable mixtures should not be equated with the weight of a controlled substance for sentencing purposes).
The Chapman analysis applies with respеct to the Lorcet tablets in this case. The hydrocodone has been mixed, or commingled, with the acetaminophen, and the two are ingested together. The acetaminophen facilitates the use, marketing, and access of the hydrocodone. See Rolande-Gabriel, 938 F.2d at 1237. Therefore, based upon the legislаture‘s clear intent to create the offense of trafficking in hydrocodone, as well as the Supreme Court‘s definition of the term “mixture” as it is used in this context, wе conclude that the aggregate weight of the tablets seized from Hayes, and not the amount of hydrocodone per dosage unit, is the determinative wеight for prosecution under
REVERSED AND REMANDED.
POLEN and STEVENSON, JJ., concur.