Hayes v. State
| Decision Date | 07 October 1999 |
| Docket Number | No. 94,688.,94,688. |
| Parties | Kathyrn HAYES, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Andrew B. Metcalf of the Law Offices of Norman A. Green, P.A., Vero Beach, Florida, for petitioner.
Robert A. Butterworth, Attorney General, Celia Terenzio, Bureau Chief, West Palm Beach, and James J. Carney, Assistant Attorney General, West Palm Beach, Florida, for respondent.
We have for review the Fourth District's decision in State v. Hayes, 720 So.2d 1095 (Fla. 4th DCA 1998), which certified conflict with the Second District's decision in State v. Perry, 716 So.2d 327 (Fla. 2d DCA 1998), and the First District's decision in State v. Holland, 689 So.2d 1268 (Fla. 1st DCA 1997), concerning whether the drug trafficking statute applies to possession of hydrocodone in amounts under fifteen milligrams per dosage unit. We have jurisdiction. See art. V, § 3(b)(4). For the reasons that follow, we quash the decision under review.
According to the State's allegations, Kathyrn Hayes phoned in a fraudulent prescription to a local pharmacy for forty tablets of Lorcet, which is approximately a one-week supply of the drug when administered according to directions. The pharmacy was unable to verify the prescription and contacted police. When Hayes arrived to retrieve the prescription, she was arrested.
Lorcet is a brand name prescription pain reliever containing approximately 750 milligrams of acetaminophen (Tylenol) and 7.5 milligrams of hydrocodone per tablet. Thus, each tablet of Lorcet contains one percent of hydrocodone. Hydrocodone is a codeine derivative pain killer, found in some trade name drugs, including Lorcet and Vicodin. See Stedman's Medical Dictionary 816 (26th ed.1995).
Hayes was charged with trafficking in four grams or more of hydrocodone in violation of section 893.135(1)(c)1, Florida Statutes (Supp.1996). The trial court granted Hayes' motion to dismiss the charges, relying on the First District's opinion in Holland, and the State appealed to the Fourth District. The Fourth District reversed based on its interpretation of the applicable statutes, concluding that Hayes was properly charged with trafficking. See Hayes, 720 So.2d at 1097
.
The issue that we must resolve in this case is whether Hayes could be properly charged under the trafficking statute, section 893.135, which provides mandatory minimum terms of imprisonment and mandatory fines for trafficking in various drugs. The trafficking statute at issue in this case, section 893.135(1)(c)1, prohibits the sale, purchase, manufacture, delivery, or possession of four grams or more of the following substances:
morphine, opium, oxycodone, hydrocodone, hydromorphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, as described in section 893.03(1)(b) [Schedule I] or (2)(a) [Schedule II] or 4 grams of any mixture containing such substance ... commits a felony of the first degree, which felony shall be know as "trafficking" in illegal drugs.
(Emphasis supplied.) As the Fourth District recognized, the drug trafficking statute applies only to Schedule I and Schedule II illegal substances, and not to Schedule III substances. See Hayes, 720 So.2d at 1096
. However, hydrocodone is listed in both Schedule II and Schedule III.
If the Lorcet tablets that Hayes possessed are properly classified as Schedule II substances, Hayes would be subject to a mandatory minimum term of imprisonment of twenty-five years and a mandatory fine of $500,000. See 893.135(1)(c)1.c. On the other hand, if the Lorcet tablets that Hayes possessed constitute a Schedule III substance, then Hayes could not be prosecuted under the trafficking statute. Instead, she could be prosecuted for unauthorized possession of a Schedule III substance, a third degree felony, see § 893.13(1)(a)2, Fla.Stat. (Supp.1996), punishable by a term of imprisonment not to exceed five years. See § 775.082(3)(d), Fla.Stat. (1995).
The district courts of appeal addressing this issue have reached differing conclusions. The Fourth and Fifth Districts have concluded that it is proper to consider the aggregate weight of the tablets to determine whether the defendant can be charged with drug trafficking. See, e.g., Hayes, 720 So.2d at 1097
; State v. Baxley, 684 So.2d 831, 832-33 (Fla. 5th DCA 1996).1 In contrast, the First and Second Districts have concluded that if the amount of hydrocodone is fifteen milligrams or less per dosage unit, as is the hydrocodone in this case, the defendant possesses a Schedule III substance and cannot be charged with the crime of trafficking. See, e.g., Holland, 689 So.2d at 20;2
As pointed out by Judge Klein in his concurring opinion in State v. Dial, 730 So.2d 813, 813 (Fla. 4th DCA 1999), the penalty for possessing a minimal number of prescription tablets containing hydrocodone would subject the defendant to a twenty-five year mandatory minimum sentence and a $500,000 fine even though the total amount of hydrocodone was as little as .3 grams. This is the same penalty prescribed for a defendant who illegally possesses twenty-eight grams of pure heroin. § 893.135(1)(c)1.c. "This anomaly occurs" because, according to the construction given by the Fourth and the Fifth Districts, "it is the total weight of the tablets, which are ninety-eight percent a non-controlled substance, which determines the penalty." Dial, 730 So.2d at 813 (Klein, J., specially concurring).
To determine whether this "anomaly" was intended by the Legislature, we must examine the actual text of sections 893.135(1)(c)1 (), 893.03(2)(a)1.j, Florida Statutes (Supp.1996) (hydrocodone listed in Schedule II), and 893.03(3)(c)4 (hydrocodone listed in Schedule III). This is because "[l]egislative intent must be determined primarily from the language of the statute." Overstreet v. State, 629 So.2d 125, 126 (Fla.1993).
Although it has been asserted that the appellate courts' differing interpretations of section 893.135(1)(c)1 alone render the statute ambiguous, see Dial, 730 So.2d at 813 (Klein, J., specially concurring)
, we find that a "strict construction" of these criminal statutes, as is mandated by section 775.021(1), Florida Statutes (1995), supports the interpretation given by the First District and Second District. See Johnson v. State, 602 So.2d 1288, 1290 (Fla.1992). "The rules of statutory construction require courts to strictly construe criminal statutes, and that `when the language is susceptible to differing constructions, [the statute] shall be construed most favorably to the accused.'" Id. (quoting § 775.021(1), Fla.Stat. (1989)).
In resolving the issue before us, it is necessary to review the statutory provisions of all three schedules of controlled substances as well as the trafficking statute because the trafficking statute specifically refers to, and thus incorporates by reference Schedule II substances. See Preface at viii, Fla.Stat. (1995) (); Van Pelt v. Hilliard, 75 Fla. 792, 808-09, 78 So. 693, 698 (1918); see generally Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455-56 (Fla.1992)
(). Further, Schedules II and III must be read together because both schedules state that hydrocodone is listed in that schedule "unless listed in another schedule." §§ 893.03(2)(a),.03(3)(c).
We turn first to the definitions and descriptions of the substances in Schedules I, II and III, mindful that the trafficking statute applies only to Schedule I and II substances. Hydrocodone is not included in the list of Schedule I narcotics. Schedule I narcotics are those controlled substances with the highest potential for abuse and have "no currently accepted medical use in treatment." § 893.03(1). Hydrocodone is, however, classified in the criminal statutes as both a Schedule II and a Schedule III controlled substance. In fact, hydrocodone is the only drug listed in the trafficking statute at issue that is found in both Schedule II and Schedule III.
A substance listed in Schedule II has "a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States, and abuse of the substance may lead to severe psychological or physical dependence." § 893.03(2). Schedule II provides, in pertinent part, that "unless listed in another schedule," "[h]ydrocodone" is a Schedule II substance. § 893.03(2)(a)1.j (emphasis supplied).
In contrast, Schedule III substances are considered to have:
[A] potential for abuse less than the substances contained in Schedules I and II and ha[ve] a currently accepted medical use in treatment in the United States, and abuse of the substance may lead to moderate or low physical dependence or high psychological dependence or, in the case of anabolic steroids, may lead to physical damage.
§ 893.03(3). Hydrocodone is also included in Schedule III:
§ 893.03(3)(c)4 (emphasis supplied).
Each schedule states that hydrocodone is listed in that schedule "unless listed in another schedule." §§ 893.03(2)(a),.03(3)(c). Therefore, the express statutory terms require that Schedules II and III be read with reference to one another. See Preface, Fla.Stat.; Van Pelt, 75 Fla. at 808-09, 78 So. at 698. The Schedule III...
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