Summary
reversing trafficking conviction where chemist tested contents of only one or two capsules found in change purse and suspected to contain heroin
Summary of this case from Purvis v. StateOpinion
No. 89-1492.
June 26, 1990.
Appeal from the Circuit Court, Dade County, Ursula Ungaro, J.
Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Ivy R. Ginsberg, Assistant Atty. Gen., for appellee.
Before HUBBART, FERGUSON and GODERICH, JJ.
CONFESSION OF ERROR
As the State properly concedes, based on the controlling authorities of State v. Clark, 538 So.2d 500 (Fla. 3d DCA), review denied, 545 So.2d 1369 (Fla. 1989) and Ross v. State, 528 So.2d 1237 (Fla. 3d DCA), review denied, 537 So.2d 569 (Fla. 1988), the trial court erred in denying the defendant's motion to dismiss Count I, trafficking in illegal drugs, or in the alternative, to reduce the trafficking in illegal drugs charge to possession of heroin, where the chemist only tested one or two heroin capsules found in a change purse. We, therefore, reduce Count I to possession of heroin, and remand for an appropriate sentence.