                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

RYAN WILDER,                         NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-5705

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed June 15, 2016.

An appeal from the Circuit Court for Clay County.
Don H. Lester, Judge.

Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney
General, Tallahassee, for Appellee.




WETHERELL, J.

      The appellant, Ryan Wilder, was convicted of first-degree felony murder,

second-degree felony murder, and trafficking in methamphetamine. He raises four

issues in this direct appeal, only one of which merits discussion: whether the
liquid by-product from the manufacture of the methamphetamine was properly

included when calculating the weight of the methamphetamine for purposes of

meeting the threshold weight for trafficking. We affirm this issue for the reasons

that follow, and we affirm the other issues raised by Wilder without discussion.

      In February 2012, after hours of surveillance, four deputies with the Clay

County Sheriff’s Office approached the front door of a residence that was

suspected to be the site of a methamphetamine lab to conduct a “knock and talk.”

Other deputies were positioned around the house. After several knocks, the door

opened, and a man inside the house started shooting at the deputies. One deputy

was killed, and another was injured. The shooter then ran out the back door where

he was shot and killed by a deputy who was stationed in the back yard. During the

incident, the deputies commanded the other occupants, including Wilder, to exit

the house. Wilder complied and was taken into custody without incident.

      After everyone was outside, the deputies entered the house and found items

indicative of a methamphetamine lab. They collected items containing a total

weight of approximately 1 gram of methamphetamine at various stages of the

production process, along with a glass vase containing 26.2 grams of a liquid by-

product left over from the manufacturing process. The liquid by-product was

toxic, but it contained a trace amount (less than 1%) of methamphetamine and




                                         2
there was testimony that the liquid could be reused to manufacture additional

methamphetamine.

      Based on the total weight of the liquid by-product and the other items

containing   methamphetamine,      Wilder   was    charged   with   trafficking   in

methamphetamine under section 893.135(1)(f)1., Florida Statutes (2011). He was

also charged with first-degree felony murder (for the deputy’s death) and second-

degree felony murder (for the shooter’s death), with the trafficking offense serving

as the predicate felony for both murder charges. 1 The jury found Wilder guilty of

these charges, and the trial court sentenced him to two consecutive terms of life in

prison for the murders and a concurrent 30-year term for trafficking in

methamphetamine.

      On appeal, Wilder argues that the 26.2 grams of liquid by-product should

not have been included in calculating the total weight of methamphetamine for the

trafficking offense because even though the liquid contained a trace amount of

methamphetamine, it was not a consumable or marketable mixture. If Wilder is

correct, then his trafficking conviction must be reversed because the weight of the

remaining methamphetamine recovered at the scene was well below the 14 gram


1
   Wilder was also charged with possession of a firearm by a convicted felon and
attempted second-degree murder (three counts) of the other deputies at the front
door who were shot at. The trial court granted a judgment of acquittal on the
possession of a firearm charge, and the jury acquitted Wilder of the attempted
murder charges.
                                       3
threshold for trafficking, and if Wilder’s trafficking conviction is reversed, his

first-degree and second-degree felony murder convictions must also be reversed

because the trafficking offense was the predicate felony for those convictions.2

See §§ 782.04(1)(a), (3)(a), Fla. Stat.

      Resolution of the issue raised by Wilder begins – and ends – with the plain

language of the applicable provisions of section 893.135: subparagraph (1)(f)1.

and subsection (6). See Trinidad v. Fla. Peninsula Ins. Co., 121 So. 3d 433, 439

(Fla. 2013) (“When construing a statute, this Court attempts to give effect to the

Legislature’s intent, looking first to the actual language used in the statute and its

plain meaning.”); M.D. v. State, 993 So. 2d 1061, 1063 (Fla. 1st DCA 2008)

(“[W]hen a statute is clear and unambiguous, courts will not look behind the

statute’s plain language for legislative intent, or resort to rules of statutory

construction to ascertain intent.”).

      Section 893.135(1)(f)1. provides in pertinent part:

      Any person who knowingly sells, purchases, manufactures, delivers,

2
  This would be a hollow victory for Wilder because he would still be subject to a
mandatory life sentence since the jury was instructed on – and the evidence was
more than sufficient to support convictions for – the lesser included offenses of
possession of less than 14 grams of methamphetamine and third-degree felony
murder of the deputy. See §§ 893.13(1)(a)1., Fla. Stat. (2011) (possession of
methamphetamine is a second-degree felony); 782.04(4), Fla. Stat. (third-degree
felony murder is an unlawful killing that occurs while the defendant is engaged in
a non-enumerated felony); 782.065, Fla. Stat. (defendant convicted of third-degree
felony murder “shall be sentenced to life imprisonment without eligibility for
release” if the victim is a law enforcement officer).
                                          4
      or brings into this state, or who is knowingly in actual or constructive
      possession of, 14 grams or more of . . . methamphetamine as
      described in section 893.03(2)(c)4., or of any mixture[3] containing . . .
      methamphetamine . . . in conjunction with other chemicals and
      equipment utilized in the manufacture of . . . methamphetamine
      commits a felony of the first degree, which felony shall be known as
      “trafficking in amphetamine,” . . . .

(emphasis added). And, section 893.135(6) provides in pertinent part:

      For the purpose of clarifying legislative intent regarding the weighing
      of a mixture containing a controlled substance described in this
      section, the weight of the controlled substance is the total weight of
      the mixture, including the controlled substance and any other
      substance in the mixture.

      There is no ambiguity in these statutes. Section 893.135(1)(f)1. clearly

contemplates the punishment for trafficking of “any” mixture of methamphetamine

and does not set a minimum threshold amount of methamphetamine that must be

part of the mixture, and section 893.135(6) clearly states that, when a mixture

contains a controlled substance, the total weight of the mixture is used, not just the

weight of the controlled substance in the mixture.         Accordingly, when these

statutes are read together, it is clear that so long as there is some amount – no

matter how small – of methamphetamine in the mixture, the weight of the

methamphetamine for purposes of the thresholds in the trafficking statute is the

total weight of the mixture.



3
 “Mixture” is defined by section 893.02(16) to mean “any physical combination of
two or more substances.”
                                        5
      We find no merit in Wilder’s argument that these otherwise clear statutes

become ambiguous when read in conjunction with subsection (7) of section

893.135, which provides:

             For the purpose of further clarifying legislative intent, the
             Legislature finds that the opinion in Hayes v. State, 750
             So. 2d 1 (Fla. 1999) [Hayes II] does not correctly
             construe legislative intent. The Legislature finds that the
             opinions in State v. Hayes, 720 So. 2d 1095 (Fla. 4th
             DCA 1998) [Hayes I] and State v. Baxley, 684 So. 2d
             831 (Fla. 5th DCA 1996) correctly construe legislative
             intent.

This argument is based on the flawed premise that subsection (7) reflects a

legislative intent to adopt the “market approach” discussed in Chapman v. United

States, 500 U.S. 453 (1991), and thus, exclude the weight of any unmarketable

portion of a mixture from the weight of the controlled substance.

      Subsection (7) does not mention the “market approach” or Chapman, and on

its face, the statute simply reflects the Legislature’s disapproval of the result of the

Florida Supreme Court’s decision in Hayes II in favor of the result reached by the

district courts in Hayes I and Baxley: i.e., that a defendant can be charged with

trafficking in hydrocodone based on the aggregate weight of the tablets in the

defendant’s possession, regardless of the dosage of hydrocodone in each tablet.

Indeed, the legislative staff analysis of the bill through which subsection (7) was

enacted demonstrates that the Legislature was primarily focused on remedying

Hayes II’s “effective nullification” of the offense of trafficking in hydrocodone:
                                           6
               [Hayes II] effectively nullified the trafficking provision
              as it relates to hydrocodone because, almost without
              exception, the trafficking that occurs in hydrocodone is
              trafficking in prescription medications containing not
              more than 15 mg. of hydrocodone per dosage unit. It is
              not clear from the Hayes decision if the Court was aware
              of the preclusive effect of its decision.

Fla. S. Comm. on Crim. Just., CS for SB 232 (2001) Staff Analysis, 4 at 5 (Mar. 7,

2001). To that end, the analysis explained that the purpose of subsection (7) was to

indicate that “hydrocodone or mixtures containing hydrocodone, whether listed in

Schedule II or Schedule III are, for the purpose of charging trafficking, to be

weighed no differently than any other controlled substances, e.g., cocaine or cut

cocaine.” Id. at 8.

        Moreover, to adopt the interpretation of subsection (7) advocated by Wilder,

we would have to interpret subsection (6) of section 893.135 to read in pertinent

part:   “. . . the weight of the controlled substance is the total weight of the

marketable or usable portion of the mixture, including the controlled substance and

any other substance in that portion of the mixture.” We have no authority to

judicially amend the statute in this (or any other) manner. See Genesis Ministries,

Inc. v. Brown, 186 So. 3d 1074, 1078 (Fla. 1st DCA 2016) (citing Am. Bankers

Life Assurance Co. of Fla. v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968)).



4
  The staff analysis is available at http://archive.flsenate.gov/data/session/2001/
Senate/bills/ analysis/pdf/2001S0232.CJ.pdf.
                                        7
      In this case, the liquid found in the glass vase was a “mixture” of

methamphetamine because it contained methamphetamine in addition to the waste

by-product from the manufacturing process.       Accordingly, based on the plain

language of sections 893.135(1)(f)1. and 893.135(6), the jury was properly

instructed on and allowed to consider the liquid by-product in determining whether

Wilder was guilty of the trafficking offense, 5 and because the combined weight of


5
  This conclusion is not undermined by the methamphetamine cases relied on by
Wilder arising under the federal counterpart to section 893.135. First and
foremost, the federal statutes discussed in those cases differ from the applicable
Florida statute in a significant respect because the federal statutes do not contain
language similar to that in section 893.135(6) specifying how the weight of a
mixture containing a controlled substance is to be calculated. Additionally, the
federal circuits are split on the question of whether the weight of the unmarketable
by-product resulting from the production of methamphetamine should be included
in the weight of the methamphetamine under the applicable federal statutes, with a
slight majority of the cases holding that the weight of the by-product mixture
should be included. Compare United States v. Kuenstler, 325 F.3d 1015 (8th Cir.
2003) (including unusable toxic waste solution containing small amount of
methamphetamine in total weight for sentencing purposes based on plain language
of statute and determination that waste products are necessarily part of
manufacturing process), United States v. Richards, 87 F.3d 1152 (10th Cir. 1996)
(en banc) (rejecting “market” approach to calculating weight of liquid solution of
methamphetamine because nowhere in the applicable federal statutes are the words
“marketable” or “usable mixture”), United States v. Palacios-Molina, 7 F.3d 49
(5th Cir. 1993) (including waste by-products in total weight determination because
they were necessary to manufacturing process), and United States v. Walker, 960
F.2d 409 (5th Cir. 1992) (including entire weight of toxic liquid containing small
percentage of methamphetamine in computing sentence), with United States v.
Stewart, 361 F.3d 373 (7th Cir. 2004) (holding that “only the amount of pure drug
contained in an unusable solution, or the amount of usable drug that is likely to be
produced after that unusable solution is fully processed, may be included in the
drug quantity under the statute”), United States v. Newsome, 998 F.2d 1571 (11th
Cir. 1993) (excluding weight of unusable sludge mixture containing only trace
                                           8
all of the liquid and other methamphetamine found at the scene exceeded the

statutory weight threshold for a trafficking offense, Wilder was properly convicted

of that offense and the two felony murders predicated on that offense.

      Accordingly, we affirm Wilder’s convictions and sentences.

      AFFIRMED.

KELSEY, J., and DEMPSEY, ANGELA, Associate Judge, CONCUR.




amount of methamphetamine), and United States v. Jennings, 945 F.2d 129 (6th
Cir. 1991) (holding that if methamphetamine mixture contained poisonous by-
products then entire weight of mixture is not considered because entire mixture
could not be distributed). See also United States v. Long, 958 F. Supp. 2d 1334
(M.D. Fla. 2013) (surveying the conflicting federal circuit court decisions). And,
finally, the federal sentencing guidelines for drug crimes define “mixture or
substance” for sentencing purposes to specifically exclude materials such as the
“waste water from an illicit laboratory used to manufacture a controlled substance”
that must be separated from the controlled substance before it can be used. See
U.S.S.G. § 2D1.1, cmt. n. 1 (2012).
                                          9
