Opinion
No. 99-0927.
Opinion filed December 22, 1999.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Marc A. Cianca, Judge; L.T. No. 96-454 CF.
Richard L. Jorandby, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Lara J. Edelstein, Assistant Attorney General, West Palm Beach, for appellee.
Appellant was charged by information with trafficking in twenty-eight grams or more, but less than thirty kilograms of, hydrocodone pursuant to section 893.135(1)(c)1, Florida Statutes (1997), and three counts of obtaining a controlled substance by fraud. The charges were brought after appellant obtained Lorcet tablets from a pharmacy by presenting a false prescription. The court denied his motion to dismiss the traffickingcharge. He then pled no contest to the lesser included offense of trafficking in this drug in an amount exceeding fourteen grams, as well as to the three counts of obtaining a controlled substance by fraud, and specifically reserved the right to appeal the denial of his motion to dismiss.
Lorcet is a brand name prescription pain reliever containing approximately 750 milligrams of acetaminophen (Tylenol) and 7.5 milligrams of hydrocodone per tablet.
In Hayes v. State, 24 Fla. L. Weekly S467 (Fla. Oct. 7, 1999), the supreme court held that section 893.135(1)(c)1 did not apply to Hayes' actions in trafficking four grams or more of hydrocodone. The court explained that because the Lorcet tablets contained less than fifteen milligrams of hydrocodone per dosage unit, they were Schedule III substances. Because section 893.135(1)(c)1 prohibits the unlawful possession of any Schedule I or Schedule II drug, or any mixture containing a Schedule I or Schedule II drug, that section did not apply.
As the state concedes that Hayes is on point, we hold that the court should have granted appellant's motion to dismiss this charge.
REVERSED.
DELL and GROSS, JJ., concur.