Day v. State

Appellant was convicted of trafficking in hydrocodone. Because the quantity of hy-drocodone qualified under section 893.135(c)l.b., Florida Statutes, Appellant was charged with the offense of trafficking rather than possession. In my view Appellant was deprived of a fair trial by the trial court’s failure to instruct the jury on the “prescription defense” under sections 499.03(1) and 893.13(6), Florida Statutes (2010). This fundamental error requires a new trial. I would reverse the conviction and sentence.

During the trial, a special jury instruction regarding the prescription defense was…