dissenting:
I respectfully dissent.
The district court here dismissed without prejudice the two counts against the defendant Edward E. Root. The judge implied that he expected the People to refile the charges, and my review of the record indicates that refiling would have been simple and far more appropriate than an appeal which adds to the court system’s already strained resources.
The district court dismissed count 1, possession of a schedule II controlled substance in violation of section 12-22-310 and section 18-18-105, C.R.S. 1973 (1981 Supp.), because a key Colorado Bureau of Investigation (C.B.I.) report was not framed in the language of the statute. The C.B.I. analyzed a white powdery substance found in the defendant’s car, and the C.B.I. laboratory report, introduced at the preliminary hearing by the People, was the only evidence identifying the substance, cocaine. The People did not present any evidence that the substance was controlled under section 12-22-310 which lists any salt, compound, derivative, or preparation of coca leaves, but does not specifically mention cocaine. Nor did the People ask the court to take judicial notice that cocaine is a derivative of coca leaves. When the district court dismissed count I, it suggested that the C.B.I. report could be framed in statutory language.
Rather than directing the district court to take judicial notice that section 12-22-310 includes cocaine as a schedule II controlled substance, as the majority does, I would leave the People to obtain an amended report from the C.B.I., to refile the charge of possession of coca leaves, and to introduce the amended report at another preliminary hearing, if requested.
With respect to the charge of distributing marijuana in violation of section 18-18-105(2)(c), C.R.S. 1973 (1981 Supp.)1, the record indicates confusion as to whether this was a dispensing, sale, distribution or possession case. Part of the confusion is attributable to the language of section 18-18-105(l)(a) read in conjunction with the language of section 18-18-106(5), C.R.S. 1973 (1981 Supp.), which provides:
Transferring or dispensing not more than one ounce of marihuana from one person to another for no consideration shall be deemed possession and not dispensing or sale thereof.2
*565The district court relied on section 18-18-106(5) when it ruled that there was no evidence that “any consideration went to the defendant in this case.” Section 18-18-106(5) does not reflect to whom the consideration must go, but the two police officers, who were the only witnesses at the preliminary hearing, did not see any consideration and merely repeated conflicting stories told to them by Barbara Schneider and the defendant. Before us, the People argue that if there was no consideration for this distribution, the district court should have bound the case over on a lesser included charge of possession. However, again the court dismissed the charge without prejudice to refile it or a lesser included charge, and given the amount of marijuana involved and the lack of direct evidence of consideration, Maestas v. District Court, 189 Colo. 443, 541 P.2d 889 (1975), I believe the People should have refiled a charge of distribution or possession of marijuana rather than engage in a time-consuming appeal. I would affirm the judgment of the district court.
I am authorized to say that QUINN, J., joins me in the dissent.
. Section 18-IS-105 provides:
(l)(a) ... [I]t is unlawful for any person knowingly or intentionally to manufacture, dispense, sell, or distribute, with or without remuneration, to possess, or to possess with intent to manufacture, dispense, sell, or distribute, with or without remuneration, a controlled substance....
(2) Any person who violates any of the provisions of subsection (1) of this section:
(c) In the case of ... marihuana..., except as provided in section 18-18-106, commits:
(I) A class 5 felony....
. Section 18-18-102, C.R.S. 1973 (1981 Supp.) defines all terms used in Article 18 with the *565same meanings as those set forth in section 12-22-303, C.R.S. 1973 (1981 Supp.) where “distribute” means to deliver a controlled substance other than by administering or dispens-tag, and “dispensing” is defined in section 12-22-102(9), C.R.S. 1973 (1981 Supp.) as preparing “a drug or device pursuant to a lawful prescription order.... ”