In re: Edgerson, Jerome;-Defendant; Applying for writ of certiorari and/or review, Parish of Orleans, Criminal District Court, Div. K, Nos. 398-932; to the Court of Appeal, Fourth Circuit, No. 99-KA-0387.

Denied.

would grant the writ for the following reasons.

A jury convicted defendant of distribution of a substance falsely represented to be cocaine in violation of LSA-R.S. 40:971.1. He was sentenced to five years imprisonment at hard labor pursuant to adjudication as a third felony offender (LSA-R.S.15:529.1).

The facts surrounding defendant’s arrest are as follows: An undercover police officer approached defendant and asked him where he could get a “dime.” The officer gave defendant ten dollars, and defendant gave him an item presumed to be a rock of crack cocaine. However, after the officer examined the object, he discovered that it was not crack cocaine, but rather a piece of “Cocoa Puffs” cereal. The item ultimately tested negative for the presence of cocaine.

LSA-R.S. 40:971.1 makes it unlawful to distribute “any substance represented to be a controlled dangerous substance and which is an imitation controlled dangerous substance .... ” (emphasis added).

According to testimony introduced at trial, defendant never uttered a word during the entire transaction. Thus, he made no representation to the officer that the item was crack cocaine. Moreover, neither party ever mentioned the words “crack” or “cocaine,” and there was no evidence regarding what a “dime” meant.

li>The record fails to show that defendant represented the cereal to be an illegal substance, and distribution of Cocoa Puffs is not a crime. Accordingly, I would grant defendant’s writ application and vacate his conviction and sentence.