Travis v. State

754 So. 2d 59 (2000)

Domina TRAVIS, Appellant,
v.
STATE of Florida, Appellee.

No. 5D99-1264.

District Court of Appeal of Florida, Fifth District.

February 25, 2000. Rehearing Denied April 13, 2000.

James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

PETERSON, J.

Domina Travis appeals the denial of her motion to dismiss the information charging her with trafficking in Oxycodone, a controlled substance described in subsection 893.03(2), Florida Statutes (1997). The Oxycodone was contained in 30 Roxicet tablets that she obtained from a pharmacy by presenting a false prescription.

Oxycodone is a Schedule II substance, the possession of four or more grams of which subjects one to prosecution pursuant to subsection 893.135(1)(c)1, Florida Statutes. Each Roxicet tablet contains five milligrams of Oxycodone and 325 milligrams of Acetaminophen (Tylenol), a noncontrolled substance. Because Travis' possession of 30 tablets of Roxicet contained only fifteen one-hundredths (.15) of a gram of Oxycodone, she could not have been in violation of the drug trafficking statute.

We note that the trial court was without the benefit of Hayes v. State, 750 So. 2d 1 (Fla. 1999). Hayes specifically overruled this court's decision in State v. Baxley, 684 So. 2d 831 (Fla. 5th DCA 1996), rev. denied, 694 So. 2d 737 (Fla.1997), which the trial court relied on in denying Travis' motion to dismiss.

The denial of the motion to dismiss the count charging Travis with trafficking in Oxycodone is reversed.

REVERSED.

COBB and GRIFFIN, JJ., concur.