State v. Rodriguez

590 So. 2d 52, 1991 La. LEXIS 3241, 1991 WL 246139

Opinion

PER CURIAM.

Granted. Under the law applicable at the time of the offense, the defendant’s punishment for possession of cocaine in specified amounts under La.Rev.Stat. 40:967(F) depended upon grams of cocaine or related substances by weight and not upon the weight of the preparation or mixture containing the cocaine or related substances. State v. Newton, 545 So.2d 530 (La.1989). The state did not present any evidence that qualitative testing of the four samples taken from the 1,000 grams of powder seized from defendant indicated the presence of a specified amount of cocaine. Defendant’s conviction and sentence for possession of more than 400 grams of cocaine are therefore vacated. Judgment for simple possession of cocaine in violation of La.Rev.Stat. 40:967(C) is entered, and this case is remanded to the district court for resentencing. State v. Newton, supra; La.Code Crim.Proc. art. 821.

COLE, J., dissents.