Third District Court of Appeal
State of Florida
Opinion filed December 20, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-524
Lower Tribunal No. F18-10505
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The State of Florida,
Appellant,
vs.
Daniel Arshadnia,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, Laura
Shearon Cruz, Judge.
Ashley Moody, Attorney General, and Kseniya Smychkouskaya,
Assistant Attorney General, for appellant.
Michael Minardi, P.A., Michael C. Minardi (Tampa), and Darius Asly,
for appellee.
Before EMAS, MILLER, and LOBREE, JJ.
MILLER, J.
1
Appellant, the State of Florida, challenges an order dismissing a
trafficking in synthetic cannabinoids charge filed against appellee, Daniel
Arshadnia. We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(A). The
overarching issue implicated on appeal is whether tetrahydrocannabinol
(“THC”) derived from the flowers or stems of a cannabis plant qualifies as a
“synthetic cannabinoid” under the Florida Comprehensive Drug Abuse
Prevention and Control Act. Concluding it does not, we affirm.
BACKGROUND
The facts giving rise to this dispute require little elaboration. Law
enforcement officers executed a search warrant of Arshadnia’s residence
and discovered, among other items, marijuana plants and cereal bars.
Laboratory testing confirmed the presence of THC in the cereal bars. The
chemist could not, however, offer an opinion as to the source of the THC.
The State filed an amended information charging Arshadnia with: (1)
trafficking between 25 and 2,000 pounds of cannabis, in violation of section
893.135(1)(a)1., Florida Statutes (2018); (2) possession of a place for the
purpose of trafficking in cannabis, in violation of section 893.1351(1), Florida
Statutes (2018); and (3) trafficking more than 1,000 grams of a synthetic
cannabinoid, in violation of sections 893.135(1)(m)2.c. and 893.03(1)(c)190.,
Florida Statutes (2018).
2
Arshadnia moved to dismiss the last count. In his motion, he asserted
the State was unable to establish that the THC in the cereal bars was of
synthetic origin; as a result, he argued, the charge was improper.
The prosecutor opposed the motion. He conceded the THC “could
have come from any part of the cannabis plant, including the resin, the
flower, [or] the stems.” But he contended “synthetic cannabinoids” is
something of a misnomer because the term is capaciously defined under
Florida law to encompass all THC, regardless of origin. Relying upon the
holding by our sister court in State v. Stevenson,
307 So. 3d 784 (Fla. 4th
DCA 2020), the trial court granted the motion. The State unsuccessfully
sought rehearing, and the instant appeal ensued.
STANDARD OF REVIEW
We conduct a de novo review of issues of statutory construction. See
State v. Espinoza,
264 So. 3d 1055, 1062 (Fla. 3d DCA 2019).
ANALYSIS
Resolution of this appeal requires an excursion through a maze of
dense statutory language that appears, at first blush, nearly impenetrable.
Codified in chapter 893, Florida Statutes, the Florida Comprehensive Drug
Abuse Prevention and Control Act (“Act”) is modeled after the Federal
Comprehensive Drug Abuse Prevention and Control Act of 1970. See
3
Cilento v. State,
377 So. 2d 663, 665 (Fla. 1979). The Act establishes a
framework to regulate certain controlled substances deemed to pose a risk
of abuse or dependence. It lists each substance in one of five schedules
and imposes penalties based upon a three-tiered classification system: (1)
possession of a controlled substance pursuant to section 893.13(6), Florida
Statutes; (2) possession with intent to distribute a controlled substance
pursuant to section 893.13(1)(a), Florida Statutes; or (3) trafficking pursuant
to section 893.135, Florida Statutes.
In the first count of the amended information, the State charged
Arshadnia with trafficking in cannabis. Cannabis is listed in Schedule One
of the Act and straightforwardly defined as “all parts of any plant of the genus
Cannabis, whether growing or not; the seeds thereof; the resin extracted
from any part of the plant; and every compound, manufacture, salt,
derivative, mixture, or preparation of the plant or its seeds or resin.”1
§ 893.02(3), Fla. Stat. (italics in original).
In the third count, the State charged Arshadnia with trafficking in
synthetic cannabinoids pursuant to sections 893.135(1)(m)2.c. and
1
The Act reflects that all Schedule One substances have “a high potential
for abuse and . . . no currently accepted medical use in treatment in the
United States and in its use under medical supervision does not meet
accepted safety standards.” § 893.03(1), Fla. Stat.
4
893.03(1)(c)190., Florida Statutes. The first statute provides, in pertinent
part:
(m)1. A person who knowingly sells, purchases, manufactures,
delivers, or brings into this state, or who is knowingly in actual or
constructive possession of, 280 grams or more of a:
a. Substance described in § 893.03(1)(c)30., 46.-50., 114.-142.,
151.-156., 166.-173., or 176.-186. or a synthetic cannabinoid, as
described in § 893.03(1)(c)190.; or
b. Mixture containing any substance described in sub-
subparagraph a.,
commits a felony of the first degree, which felony shall be known
as “trafficking in synthetic cannabinoids,” punishable as provided
in § 775.082, § 775.083, or § 775.084.
2. If the quantity involved under subparagraph 1.:
....
c. Is 1,000 grams or more, but less than 30 kilograms, such
person shall be sentenced to a mandatory minimum term of
imprisonment of 15 years, and the defendant shall be ordered to
pay a fine of $200,000.
§ 893.135(1)(m), Fla. Stat. (emphasis added). The second statute does not
precisely define the term “synthetic cannabinoid.” Instead, it contains the
following description:
Synthetic Cannabinoids.—Unless specifically excepted or unless
listed in another schedule or contained within a pharmaceutical
product approved by the United States Food and Drug
Administration, any material, compound, mixture, or preparation
that contains any quantity of a synthetic cannabinoid found to be
in any of the following chemical class descriptions, or
5
homologues, nitrogen-heterocyclic analogs, isomers (including
optical, positional, or geometric), esters, ethers, salts, and salts
of homologues, nitrogen-heterocyclic analogs, isomers, esters,
or ethers, whenever the existence of such homologues, nitrogen-
heterocyclic analogs, isomers, esters, ethers, salts, and salts of
isomers, esters, or ethers is possible within the specific chemical
class or designation. Since nomenclature of these synthetically
produced cannabinoids is not internationally standardized and
may continually evolve, these structures or the compounds of
these structures shall be included under this subparagraph,
regardless of their specific numerical designation of atomic
positions covered, if it can be determined through a recognized
method of scientific testing or analysis that the substance
contains properties that fit within one or more of the following
categories:
a. Tetrahydrocannabinols.—Any tetrahydrocannabinols naturally
contained in a plant of the genus Cannabis, the synthetic
equivalents of the substances contained in the plant or in the
resinous extracts of the genus Cannabis, or synthetic
substances, derivatives, and their isomers with similar chemical
structure and pharmacological activity, including, but not limited
to, Delta 9 tetrahydrocannabinols and their optical isomers, Delta
8 tetrahydrocannabinols and their optical isomers, Delta 6a,10a
tetrahydrocannabinols and their optical isomers, or any
compound containing a tetrahydrobenzo[c]chromene structure
with substitution at either or both the 3-position or 9-position, with
or without substitution at the 1-position with hydroxyl or alkoxy
groups, including, but not limited to:
(I) Tetrahydrocannabinol.
§ 893.03(1)(c)190., Fla. Stat. (emphasis added).
In cases involving statutory construction, the cardinal rule is that “the
authoritative statement is the . . . text, not the legislative history or any other
6
extrinsic material.”2 Exxon Mobil Corp. v. Allapattah Servs., Inc.,
545 U.S.
546, 568 (2005). No word should be construed as superfluous. See State
v. Bodden,
877 So. 2d 680, 686 (Fla. 2004). On the contrary, each word,
phrase, sentence, and part of the statute should be given effect. See Fla.
Dep’t of Revenue v. Fla. Mun. Power Agency,
789 So. 2d 320, 324 (Fla.
2001). That is because courts should “presume that [the] legislature says in
a statute what it means and means in a statute what it says there.” Conn.
Nat’l Bank v. Germain,
503 U.S. 249, 253–54 (1992).
Armed with these entrenched principles, we turn to the case at hand.
Section 893.135(1)(m), Florida Statutes, proscribes possession of 280
grams or more of synethetic cannabinoids. The reader is directed to section
893.03(1)(c)190., Florida Statutes, for an explanation.
As previously noted, section 893.03(1)(c)190., Florida Statutes, in turn,
is entitled “Synthetic Cannabinoids” and contains a description, rather than
a definition, of the term. Hence, the statute does not suggest that the term
should be construed as a term of art carrying a special connotation.
2
Arshadnia invokes the Legislative Staff Analysis for the proposition that the
statute was intended to prohibit “[a]pproximately 56 controlled substances
identified as synthetic cannabinoids.” Fla. Staff Analysis, H.B. 447 (2017).
Because the statute is clear and unambiguous, we need not resort to
external sources.
7
In the absence of a statutory definition, the “ordinary, contemporary,
common meaning” of the term controls. See Perrin v. United States,
444
U.S. 37, 42 (1979). The parties agree that cannabinoids are the active
psychoactive components in cannabis. The American Heritage Dictionary
defines “synthetic” as “[n]ot natural or genuine; artificial or contrived . . .
[p]repared or made artificially.” Synthetic, The American Heritage Dictionary
of the English Language, 1756 (Houghton Mifflin Co., 4th ed. 2006). In light
of these definitions, the statute is plainly directed at artificial substances
designed to mimic naturally occurring cannabinoids.
We are mindful that “[t]itles . . . are . . . not dispositive,” Yates v. United
States,
574 U.S. 528, 552 (2015) (Justice Alito, concurring), and, of course,
“[a] title or heading should never be allowed to override the plain words of a
text.” Fulton v. City of Philadelphia, Pennsylvania,
141 S.Ct. 1868, 1879
(2021) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 222 (West Group 2012)). But here, the root
word “synthetic” appears in both the caption and body of section
893.03(1)(c)190., Florida Statutes. Perhaps even more importantly, the plain
language of the statute presupposes the forbidden substance was
“synthetically produced.” § 893.03(1)(c)190., Fla. Stat.
8
Further supporting this construction is the statutory requirement that
scientific testing must establish “the substance contains properties that fit
within one or more . . . categories.” Id. In this vein, the statute lists
“homologues” and other analogous substances bearing structural similarities
to “[a]ny [THCs] naturally contained in a plant of the genus Cannabis.”
§ 893.03(1)(c)190.a., Fla. Stat. Although this list is by no means exhaustive,
it plainly limits the sweep of the statute to “manmade chemicals that mimic
the effect of THC,” United States v. Nahmani,
696 Fed. Appx. 457, 463 n. 5
(11th Cir. 2017), while simultaneously allowing the government “to keep
pace with, or stay ahead of, the quickly changing synthetic drug supply.”
Joseph A. Cohen, The Highs of Tomorrow: Why New Laws and Policies are
Needed to Meet the Unique Challenges of Synthetic Drugs, 27 JLHealth 164,
181–182 (2014); see also Jake Schaller, Not for Bathing: Bath Salts and the
New Menace of Synthetic Drugs,
16 J. Health Care L. & Pol'y 245, 248, 267–
68 (2013) (“Synthetic marijuana, which initially appeared in the United States
in late 2008, typically consists of plant material laced with synthetic
cannabinoids: chemicals that claim to provide the same effect as the active
ingredient in marijuana, Δ9–tetrahydrocannabinol (THC).”).
Our reading is reinforced by other statutory provisions. The Act
separately classifies both cannabis and synthetic cannabinoids as Schedule
9
One controlled substances, while concomitantly imposing far harsher
penalties for trafficking in the latter. Because the primary psychoactive
ingredient in all regulated cannabis is THC, relegating naturally derived THC
to the synthetic cannabinoid statute converts the cannabis statute to mere
surplusage. Such a construction runs afoul of established principles. See
Hechtman v. Nations Title Ins. of N.Y.,
840 So. 2d 993, 996 (Fla. 2003) (“It
is an elementary principle of statutory construction that significance and
effect must be given to every word, phrase, sentence, and part of the statute
if possible, and words in a statute should not be construed as mere
surplusage.”); see also Fleischman v. Dep’t of Pro. Regul.,
441 So. 2d 1121,
1123 (Fla. 3d DCA 1983) (“Every statute must be read as a whole with
meaning ascribed to every portion and due regard given to the semantic and
contextual interrelationship between its parts.”); Miele v. Prudential-Bache
Sec., Inc.,
656 So. 2d 470, 472 (Fla. 1995) (“[T]he context in which a term is
used may be referred to in ascertaining the meaning of that term.”); Ceco
Corp. v. Goldberg,
219 So. 2d 475, 476–77 (Fla. 3d DCA 1969) (“Our task
as a reviewing court is to afford a logical construction according to the
general terms and intentions of the entire . . . [a]ct,” and that “it is axiomatic
that we construe the statute as a whole entity . . . in order to arrive at a
construction which avoids illogical results”).
10
This interpretation is consistent with the conclusion recently reached
by the Fourth District Court of Appeal in State v. Stevenson,
307 So. 3d 784
(Fla. 4th DCA 2020). There, the State appealed an order dismissing a
charge of felony possession of THC against Stevenson.
Id. at 784.
Stevenson successfully argued below that, because the chemist was unable
to isolate the origin of the THC, the State was constrained to bring a
misdemeanor possession of cannabis charge.
Id. at 785.
On appeal, the State argued the origin was irrelevant.
Id. at 787. The
appellate court disagreed.
Id. at 790. Given the weight involved, the court
reasoned that the felony charges were only viable “if the State could make a
prima facie showing that the source of the THC substance possessed by the
defendant was either artificially produced, cannabis resin, or ‘any compound
manufacture, salt, derivative, mixture, or preparation of such resin.’”
Id.
Because the State failed to do so, the court upheld the order on appeal.
Id.
As in Stevenson, the prosecutor in the instant case was unable to
establish the THC was synthetic in origin. Consequently, the trial court
correctly dismissed the trafficking in synthetic cannabinoids count because
“the undisputed material facts do not legally constitute the crime.” State v.
Upton,
392 So. 2d 1013, 1015 (Fla. 5th DCA 1981). We therefore affirm the
order under review.
11
Affirmed.
12
