O'HARA v. State

964 So. 2d 839, 2007 WL 2713539
CourtDistrict Court of Appeal of Florida
DecidedSeptember 19, 2007
Docket2D05-5078
StatusPublished
Cited by16 cases

This text of 964 So. 2d 839 (O'HARA v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'HARA v. State, 964 So. 2d 839, 2007 WL 2713539 (Fla. Ct. App. 2007).

Opinion

964 So.2d 839 (2007)

Mark O'HARA, Appellant,
v.
STATE of Florida, Appellee.

No. 2D05-5078.

District Court of Appeal of Florida, Second District.

September 19, 2007.

*840 W. Thomas Wadley and Ira Berman of Yanchuck, Berman, Wadley & Zervos, P.A., St. Petersburg, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Chief Judge.

Mark O'Hara was convicted of trafficking in hydrocodone based on his possession of 58 Vicodin tablets containing that substance. See § 893.135(1)(c)(1)(c), Fla. Stat. (2004). At his trial, he presented evidence that physicians had prescribed the medication for pain he suffered from a chronic inflammatory joint disease and from injuries he had sustained in an automobile accident. O'Hara urges us to reverse his conviction, claiming that the evidence established that he possessed the tablets legally. But appellate counsel concedes that this evidentiary issue was not raised at trial in a motion for judgment of acquittal. As such, it is not preserved for our review. See Stephens v. State, 787 So.2d 747, 753-54 (Fla.2001). Trial counsel did, however, preserve the second issue on appeal by asking the court to instruct the jury that it was not illegal to possess hydrocodone if it had been prescribed. The State objected to the instruction and the court denied the request. We hold that O'Hara was entitled to the instruction, and, accordingly, we reverse his conviction and remand for a new trial.

O'Hara contends that section 499.03(1), Florida Statutes (2004), and section 893.13(6) each provide a "prescription defense" to a charge of trafficking by possession under the drug trafficking statute, section 893.135. Section 499.03 is part of the chapter addressing Drug, Cosmetic, and Household Products. It states, in pertinent part:

(1) A person may not possess, or possess with intent to sell, dispense, or deliver, any habit-forming, toxic, harmful, . . . or legend drug as defined in s. 499.003(25), unless the possession of the drug has been obtained by a valid prescription of a practitioner licensed by law to prescribe the drug.

*841 § 499.03(1) (emphasis supplied). Section 893.13(6), the criminal statute that prohibits and penalizes simple drug possession, contains a similar provision:

It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice. . . .

§ 893.13(6)(a) (emphasis supplied).

The drug trafficking statute, section 893.135, contains no express language setting forth a prescription defense. However, its proscriptions against the sale, delivery, or possession of trafficking amounts of certain drugs are prefaced by the following qualification: "Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13: . . ." § 893.135(1) (emphasis supplied). O'Hara argues that the emphasized language makes the above-quoted prescription defenses available to the defendant in a trafficking prosecution under section 893.135.

The State maintains that section 499.03(1) is simply inapplicable and does not provide a defense to a charge of trafficking by possession. It acknowledges that section 893.13(6)(a) provides a prescription defense to possession of controlled substances, but it contends that the defense does not apply to a defendant who is charged with possessing a trafficking amount. Cf. Neiner v. State, 875 So.2d 699, 700 (Fla. 4th DCA 2004) (discussing prescription defense in a case involving possession of a controlled substance that is not included in the trafficking statute). As we will discuss, the State is mistaken on both points.

We begin with section 499.03. To ascertain whether section 499.03(1) might authorize a defense to trafficking by possession of hydrocodone requires an odyssey through several statutes. By its terms, the defense under this subsection applies to possession of a "legend drug" as defined by section 499.003(25). That statute, in turn, defines "legend drug" as "any drug, including, but not limited to, finished dosage forms, or active ingredients subject to, defined by, or described by s. 503(b) of the Federal Food, Drug, and Cosmetic Act or s. 465.003(8), s. 499.007(12), or s. 499.0122(1)(b) or (c)."

Of those listed statutes, section 465.003(8), Florida Statutes (2004), provides the simplest definition: "legend drugs" are drugs that are "required by federal or state law to be dispensed only on a prescription." Section 893.04(1) states that a pharmacist may dispense a "controlled substance" only "upon a written or oral prescription." A controlled substance is defined in section 893.02(4) as "any substance named or described in Schedules I-V of s. 893.03." Hydrocodone is one of those substances. § 893.03(2)(a)(1)(j), (3)(c)(3)-(4). Therefore, hydrocodone is a "legend drug" for purposes of section 499.03(1). As such, the statute does not prohibit its possession if "possession of the drug has been obtained by a valid prescription of a practitioner licensed by law to prescribe the drug." Because the first subsection of the trafficking statute, section 893.135(1), excepts acts authorized under chapter 499 from the ambit of the described crimes, the authorized possession of hydrocodone under section 499.03(1) could provide a defense to O'Hara's trafficking charge.

The State asserts that section 499.03(1) does not apply here because the statutes mentioned in the definitional subsection to which it refers, section 499.003(25), address topics other than criminal drug possession or drug trafficking. For example, *842 the State dismisses the possibility that the statute we discussed in the preceding paragraph, section 465.003(8), could have any bearing here because chapter 465 deals with the regulation of pharmacists. But this view is undermined by the fact that section 499.03(1) wholly exempts pharmacists from its operation. After setting forth its prohibition against a "person" possessing legend drugs and its exception for the possession of drugs obtained by valid prescription, the statute states:

However, this section does not apply to the delivery of such drugs to persons included in any of the classes named in this subsection, or to the agents or employees of such persons, for use in the usual course of their businesses or practices or in the performance of their official duties, as the case may be; nor does this section apply to the possession of such drugs by those persons or their agents or employees for such use:
(a) A licensed pharmacist or any person under the licensed pharmacist's supervision while acting within the scope of the licensed pharmacist's practice;
. . .

§ 499.03(1). Clearly, then, the persons subject to the proscription set forth in section 499.03(1), as well as its exception for valid prescriptions, must be persons other than pharmacists.[1] And this must be true even though one of the statutes to which the section refers for the definition of legend drugs deals with pharmacists.

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Cite This Page — Counsel Stack

Bluebook (online)
964 So. 2d 839, 2007 WL 2713539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohara-v-state-fladistctapp-2007.