Finn v. State

• Decision Date: 10 April 2008
• Docket Number: No. 2006-CT-00393-SCT.,2006-CT-00393-SCT.
• Citation: 978 So.2d 1270
• Parties: Steven FINN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

978 So.2d 1270

Steven FINN v. STATE of Mississippi.

No. 2006-CT-00393-SCT.

Supreme Court of Mississippi.

April 10, 2008.

John Carl Helmert, Jr., attorney for appellant.

Office of the Attorney General by Deirdre McCrory, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

SMITH, Chief Justice, for the Court.

¶ 1. Steven Finn was charged with violating Mississippi Code Annotated Section 41-29-313(2)(c)(I) (Rev.2005) by possessing greater than fifteen grams of pseudoephedrine, where he knew or should have known that the pseudoephedrine would be used to manufacture a controlled substance. Finn pleaded guilty and was sentenced to five years in the custody of the Mississippi Department of Corrections with three of those years to be suspended. Finn appealed, arguing that Mississippi Code Annotated Section 41-29-313(2)(c)(I) (Rev.2005) did not criminalize the possession of greater than fifteen grams of pseudoephedrine when it was in dosage form. The trial court denied Finn's request for post conviction relief. This Court assigned the case to the Court of Appeals. In a 6-4 decision, the Court of Appeals agreed with Finn and overturned the trial court's judgment. Because we find that the plain language of the statute does, in fact, criminalize possession of greater than fifteen grams of pseudoephedrine, regardless of the form, we reverse the Court of Appeals and affirm the holding of the Lee County Circuit Court.

FACTS AND PROCEDURAL HISTORY

¶ 2. At the time of his arrest, Steven Finn was in possession of 180 tablets of pseudoephedrine. The tablets were composed of more than fifty-five grams of pseudoephedrine. The grand jury subsequently indicted Finn under Mississippi Code Annotated Sections 41-29-101 through 187 for possession of greater than fifteen grams of pseudoephedrine, where he knew or should have known that the pseudoephedrine would be used unlawfully to manufacture a controlled substance. On July 7, 2005, Finn pled guilty. Finn was subsequently sentenced to five years in the custody of the Mississippi Department of Corrections, with three of those years suspended.

¶ 3. In August of 2005, Finn filed a motion for post-conviction relief, arguing that Mississippi Code Annotated Section 41-29-313(2)(c)(i) (Rev.2005) does not criminalize possession of greater than fifteen grams of pseudoephedrine if the pseudoephedrine is in dosage form. Accordingly, Finn asserts that he was charged with a nonexistent crime.

¶ 4. The trial court denied Finn's relief. However, in a six-four decision, the Court of Appeals reversed and rendered the trial court ruling, using the rationale that dosage units are the preferred units of measure for ephedrine and pseudoephedrine. Finn v. State, 979 So.2d 1, 3, 2007 WL 1816472, 2007 Miss.App. LEXIS 451, *5 (June 26, 2007). The Court of Appeals reasoned that only when the drug was not in "dosage unit" form was the weight of the drug to be considered. Id. The State of Mississippi seeks review by this Court.

¶ 5. The issue before the Court on appeal is:

WHETHER MISSISSIPPI CODE ANNOTATED SECTION 41-29-313(2)(C)(I) CRIMINALIZES THE POSSESSION OF GREATER THAN FIFTEEN GRAMS IN WEIGHT OF PSEUDOEPHEDRINE WHEN THE DRUG IS IN DOSAGE FORM.

STANDARD OF REVIEW

¶ 6. This Court applies a de novo standard of review to questions of statutory interpretation. Capital One Servs. v. Page, 942 So.2d 760, 762 (Miss.2006).

DISCUSSION

I. Plain Meaning.

¶ 7. The language of Section 41-29-313(2)(c)(i) is at the very core of this appeal. The statute in question makes it "unlawful to purchase, possess, transfer or distribute two hundred fifty (250) dosage units or fifteen (15) grams in weight (dosage unit and weight as defined in Section 41-29-139) of pseudoephedrine or ephedrine." Miss.Code Ann. § 41-29-313(2)(c)(i) (Rev.2005) (emphasis added).

¶ 8. "It is well settled that when a court considers a statute passed by the Legislature, the first question before the Court is whether the statute is ambiguous. If the statute is not ambiguous, the court should interpret and apply the statute according to its plain meaning without the aid of principles of statutory construction." Harrison County Sch. Dist. v. Long Beach Sch. Dist., 700 So.2d 286, 288-89 (Miss. 1997) (citing Miss. Power Co. v. Jones, 369 So.2d 1381, 1388 (Miss.1979)). The Court of Appeals recognized the statute lacked ambiguity when it stated: "this Court finds the Legislative intent in Section 41-29-313 is clear and unambiguous." Finn, 979 So.2d at 3, 2007 Miss.App. LEXIS 451, *5.

¶ 9. A plain-language reading of Section 41-29-313 does criminalize the possession of greater than fifteen grams of pseudoephedrine. The state points to the language in the statute highlighting the fact that the word "or" is a conjunctive used to link two or more alternatives. It appears that the provision for the weight measurement of fifteen grams is an alternative to the measure of 250 dosage units. Finn is attempting to insert a condition that is not stated in the law; he wants the weight of the drug only to be considered as an alternative when the drug does not appear in dosage form. To do so would be to tread on the domain of the Legislature, as it alone has the power to create and modify statutes. It is not the province of the Court to insert requirements where the Legislature did not do so. See Miss. Ethics Comm'n v. Grisham, 957 So.2d 997, 1003 (Miss.2007).

¶ 10. Finn argues that, because Mississippi Code Annotated Section 41-29-313(2)(c)(i) refers to Mississippi Code Annotated Section 41-29-139, weight is to be used only if the drug is not in the form of dosage units. We disagree.

¶ 11. Mississippi Code Annotated Section 41-29-139(c) states, "[f]or any controlled substance that does not fall within the definition of the term `dosage unit,' the penalties shall be based upon the weight of the controlled substance." Miss.Code Ann. § 41-29-139 (Rev.2005). This section specifically provides what is to be done when the controlled substance does not fall within the definition of dosage units. But the statute is silent as to those that do fall within the definition of "dosage units." Here, the drugs Finn possessed did fall into the definition of "dosage unit," and as a result, the above section is inapplicable. When the drug falls under the definition of "dosage unit," the state has prosecutorial discretion under Mississippi Code Annotated Section 41-29-313 to base the charges on the dosage units or on the weight of the drug. Section 41-29-139 does provide guidance as to how to determine the weight of the drug when it says "[t]he weight set forth refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance." This portion of the statute does have direct application to the instant matter, as it governs how the weight of a drug is determined. We hold that, from a plain reading of the statute, it is clear that, in Section 41-21-313, the Legislature criminalized the possession, purchase, transfer or distribution of "two hundred fifty (250) dosage units or fifteen (15) grams of weight ... of pseudoephedrine" and the state has prosecutorial discretion to choose between dosage unit or weight when the drug appears in dosage unit form. Section 41-29-139 does not alter the plain meaning; it only provides guidance as to how to proceed when the drug is not in dosage unit form.

CONCLUSION

¶ 12. Finn's interpretation ignores the plain meaning of the statute. The Court of Appeals admitted in its opinion that there was no question of ambiguity in Section 41-29-213(2)(c)(I) but it did not adhere to the plain meaning of the statute. The Court of Appeals erred by reading too much into the "definition" section referenced in the statute. For the reasons stated above, this Court reverses the decision of the Court of Appeals and reinstates the decision of the Lee County Circuit Court.

¶ 13. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

WALLER, P.J., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, P.J. LAMAR, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION JOINED BY DICKINSON, J.

GRAVES, Justice, Dissenting:

¶ 14. The majority of this Court fails to apply the clear, plain language of the applicable statutes in this case. Moreover, the majority's finding that the Court of Appeals should be reversed is erroneous. Because I would have denied the petition for writ of certiorari and would now dismiss the petition as improvidently granted, I respectfully dissent.

¶ 15. The majority cites the applicable statutory provisions and then ignores the plain language of the statute. Section 41-29-313(2)(c)(i) of the Mississippi Code Annotated states, in relevant part:

It is unlawful for any person to purchase, possess, transfer or distribute two hundred fifty (250) dosage units or fifteen (15) grams in weight (dosage unit and weight as defined in Section 41-29-139) of pseudoephedrine or ephedrine, knowing, or under circumstances where one reasonably should know, that the pseudoephedrine or ephedrine will be used to unlawfully manufacture a controlled substance.

Miss.Code Ann. § 41-29-313(c)(i) (Rev. 2005). Clearly, this language defers to Section 41-29-139, which states, in relevant part:

The penalties for any violation of this subsection (c) with respect to a controlled substance ... shall be based on dosage unit as defined herein or the weight of the controlled substance as set forth herein as appropriate:

"Dosage unit (d.u.)" means a tablet or capsule, or in the case of a liquid solution, one (1) milliliter....

For any controlled substance that does not fall within the definition of the term "dosage unit," the penalties shall be based upon the weight of the controlled substance.

The weight set forth refers to the entire weight of any mixture or substance containing a detectable amount of...