State v. Bowen

District Court of Appeal of Florida

State v. Bowen

736 So. 2d 1283, 1999 Fla. App. LEXIS 10085, 1999 WL 543247

CourtDistrict Court of Appeal of Florida

DecidedJuly 28, 1999

DocketNo. 98-3578

StatusPublished

Cited by1 cases

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State v. Bowen, 736 So. 2d 1283, 1999 Fla. App. LEXIS 10085, 1999 WL 543247 (Fla. Ct. App. 1999).

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Opinion

SHAHOOD, J.

Appellant, State of Florida, appeals the dismissal by the lower court of the charge of trafficking in hydrocodone in violation of section 893.135(l)(c)l.b, Florida Statutes (1996). We reverse and remand the order of dismissal, and direct that the charge against appellee, Christopher Bowen, be reinstated.

In this case, as in State v. Hayes, 720 So.2d 1095 (Fla. 4th DCA 1998), rev. granted, 732 So.2d 327 (Fla.1999), the charge which is the basis of the appeal is trafficking in hydrocodone. In Hayes, this court held that where hydrocodone was mixed or commingled with a substance which is capable of being consumed along with the hydrocodone, or which facilitates the use, marketing, or access of the hydro-codone, the aggregate weight of the tablets seized, and not the amount of hydrocodone per dosage unit, is the determinative weight for prosecution under section 893.135(l)(c)l, Florida Statutes (1996).

Appellee acknowledges that the law in this district is as set forth in Hayes, but urges this court to reconsider its opinion in Hayes, and follow the First District and Second District cases of State v. Holland, 689 So.2d 1268 (Fla. 1st DCA 1997) and State v. Perry, 716 So.2d 327 (Fla. 2nd DCA), rev. granted, 727 So.2d 911 (Fla. 1998). This we decline to do. Rather, we continue to remain aligned with the reasoning of the Fifth District Court of Appeals in State v. Baxley, 684 So.2d 831 (Fla. 5th DCA 1996), rev. denied, 694 So.2d 737 (Fla.1997).

As we did in Johnson v. State, 23 Fla. L. Weekly D2419, -So.2d -, 1998 WL 746142 (Fla. 4th DCA Oct.28, 1998); State v. Falkenstein, 720 So.2d 1143 (Fla. 4th DCA 1998), rev. granted by, Falkenstein v. State, 729 So.2d 390 (Fla.1999) and by, Brown v. State, 732 So.2d 325 (Fla.1999); State v. Bates, 24 Fla. L. Weekly D116, -So.2d -, 1998 WL 889483 (Fla. 4th DCA Dec.23, 1998); and State v. Dial, 730 So.2d 813 (Fla. 4th DCA 1999), we certify conflict with Holland and Perry.

Reversed and Remanded; Conflict Certified.

TAYLOR, J., and ROTHSCHILD, RONALD J., Associate Judge, concur.

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SHAHOOD, J.

Appellant, State of Florida, appeals the dismissal by the lower court of the charge of trafficking in hydrocodone in violation of section 893.135(l)(c)l.b, Florida Statutes (1996). We reverse and remand the order of dismissal, and direct that the charge against appellee, Christopher Bowen, be reinstated.

In this case, as in State v. Hayes, 720 So.2d 1095 (Fla. 4th DCA 1998), rev. granted, 732 So.2d 327 (Fla.1999), the charge which is the basis of the appeal is trafficking in hydrocodone. In Hayes, this court held that where hydrocodone was mixed or commingled with a substance which is capable of being consumed along with the hydrocodone, or which facilitates the use, marketing, or access of the hydro-codone, the aggregate weight of the tablets seized, and not the amount of hydrocodone per dosage unit, is the determinative weight for prosecution under section 893.135(l)(c)l, Florida Statutes (1996).

Appellee acknowledges that the law in this district is as set forth in Hayes, but urges this court to reconsider its opinion in Hayes, and follow the First District and Second District cases of State v. Holland, 689 So.2d 1268 (Fla. 1st DCA 1997) and State v. Perry, 716 So.2d 327 (Fla. 2nd DCA), rev. granted, 727 So.2d 911 (Fla. 1998). This we decline to do. Rather, we continue to remain aligned with the reasoning of the Fifth District Court of Appeals in State v. Baxley, 684 So.2d 831 (Fla. 5th DCA 1996), rev. denied, 694 So.2d 737 (Fla.1997).

As we did in Johnson v. State, 23 Fla. L. Weekly D2419, -So.2d -, 1998 WL 746142 (Fla. 4th DCA Oct.28, 1998); State v. Falkenstein, 720 So.2d 1143 (Fla. 4th DCA 1998), rev. granted by, Falkenstein v. State, 729 So.2d 390 (Fla.1999) and by, Brown v. State, 732 So.2d 325 (Fla.1999); State v. Bates, 24 Fla. L. Weekly D116, -So.2d -, 1998 WL 889483 (Fla. 4th DCA Dec.23, 1998); and State v. Dial, 730 So.2d 813 (Fla. 4th DCA 1999), we certify conflict with Holland and Perry.

Reversed and Remanded; Conflict Certified.

TAYLOR, J., and ROTHSCHILD, RONALD J., Associate Judge, concur.

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736 So. 2d 1283, 1999 Fla. App. LEXIS 10085, 1999 WL 543247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bowen-fladistctapp-1999.

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