Introduction to marijuana in Florida
Disclaimer: This page is for informational purposes only. It is not meant as legal advice. Use this page as a starting point for beginning a discussion with a licensed attorney.
There are a few states around the country that have relaxed the marijuana laws to allow for personal, medical and even recreational use. Florida is not one of the states that have relaxed the marijuana laws!! At this time there are no exceptions in Florida for medical marijuana, nor will you be cut a break for a small amount of marijuana found on your person for recreational use!! Florida has very strict drug laws and at this time marijuana is still seen as being a dangerous drug.
Florida Statute 893.03 sets out certain schedules for various types of drugs. The drugs listed are considered to be illegal. The schedules define whether the drug has a legitimate medical purpose and whether the substance has the potential for abuse. The drugs seen as being the most harmful are in Schedule One. The least harmful are listed in Schedule Five. At this time, marijuana is listed as a Schedule One narcotic meaning that it has no legitimate medical purpose and has a high potential for addiction and abuse.
When you are found to be in possession of marijuana in Florida, the state has guidelines on how the possession is to be charged. The possession falls into three basic categories. These categories are:
- Simple Possession
- Sale/Purchase/Delivery and
FOR ANY CONVICTION OF ANY DRUG CRIME, INCLUDING CRIMES ASSOCIATED WITH MARIJUANA THERE IS A TWO YEAR DRIVER’S LICENSE SUSPENSION THAT WILL BE IMPOSED!!! This means if you are convicted of possessing, selling, delivering or trafficking any amount of marijuana, no matter how small the amount, you will lose your driving privilege. There are also some professions regulated by the State that mandate a suspension of professional licenses if you are convicted of a drug related offense. So it is important to speak with a licensed attorney about the best way to protect these rights you may hold.
How do I know which category the State will charge me with?
The way the case is charged depends on the circumstances surrounding its discovery and the weight of the substance found. If you are found with marijuana plants, the number of plants controls how you will be charged.
What is considered “marijuana” under the statute?
Technically, marijuana is listed as “cannabis” in the Florida statutes. In the actual schedule, it is listed as number 37 in subsection “C” of the Schedule One drugs. The official listing shows marijuana or cannabis as “Tetrahydrocannabinols”. This means anything with Tetrahydrocannabinols or “THC” for short is considered illegal.
What if I only have seeds or a few stems? Is that really considered marijuana?
Under the definitions of Florida Statute 893.02 (3)“Cannabis” means “all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.”
This means if you are found with just a few seeds or stems in your possession, you can still be charged for possession of marijuana under the statute.
What do I do if I am arrested for a marijuana charge?
You call a qualified defense attorney immediately! Marijuana charges have several mandatory penalties that can affect work, school and everyday aspects of you life. If you are accused of a marijuana crime, call the office of Finebloom, Haenel & Higgins to discuss your options! We are available 24/7 by calling (888) 424-7777.
Simple possession is the term used to describe the crime charged when the state feels you have marijuana for personal use or recreational use. This is the least severe of the marijuana charges. Many times cases of simple possession are given minimal jail sentences or periods of probation. However, even simple possession can be punishable by up to five years in prison, depending on the amount you possess.
Florida Statute § 893.13(6)(b) makes possession of less than 20 grams of marijuana a first degree misdemeanor, punishable by up to one year in jail. It is also possible to receive up to one year of probation for this charge. If you receive probation, the most common terms are drug evaluations, community service hours and random drug testing to make sure you are not using marijuana (or any other controlled substances) while on probation.
If you are placed on probation after entering a plea or being found guilty of possessing less than 20 grams of marijuana you will be supervised by county probation. County probation is not transferable form county to county. But you may be able to make arrangements so that you will not have to travel.
Florida Statute § 893.13(2)(a)(2) makes purchasing or possessing more than 20 grams of marijuana a third degree felony, punishable with up to five years in prison. It is also possible to be sentenced to up to five years of probation. It is also possible to receive a combination of both.
Felony probation for a marijuana offense is similar to that of misdemeanor probation as far as the sanctions that can be received. You will most likely have to have a drug evaluation, undergo substance abuse treatment and perform community service hours. Felony probation is supervised by the state Department of Corrections. This means you can ask to transfer the supervision to another county within the state and, in some circumstances, even other states.
If you are convicted of felony possession charges you are a convicted felon. This means you lose your right to vote, possess a firearm and you can also lose your professional license. If you receive financial aid for school you can lose the right to receive that aid. If you are living in a home with the aid of public assistance you can lose that assistance as well.
Of course, for any conviction for a drug offense, if you are adjudicated guilty, you will also lose your driver’s license for a period of two years.
Even the simple possession charges carry harsh consequences. This is why it is so important to have quality representation from an experienced attorney.
What does the State have to prove to convict me of simple possession?
The jury instructions for possession state that in order to prove the crime of possession of marijuana the state must prove the following:
- You possessed a certain substance. To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession must be actual or constructive.
- The substance was marijuana
- You had knowledge of the presence of the substance. If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.
So basically, this means the State must show that you had marijuana in an area you control and you knew it.
What is constructive possession and how does it work? How is it different from actual possession?
There are two types of possession when it comes to drug charges: actual possession and constructive possession.
Actual possession means that the drugs are found on your person: such as in your hand, in your pocket, in your bra or some other place on your body. The jury instruction for actual possession states as follows:
Actual possession means:
a. The controlled substance is in the hand of or on the person, or
b. The controlled substance is in a container in the hand of or on the person, or
c. The controlled substance is so close as to be within ready reach and is under the control of the person.
Constructive possession means that the drugs were found in an area where you had dominion and control. Constructive possession is commonly charged in cases where the drugs are found in cars. When the drugs are found in a car where there are multiple persons riding, the state will charge constructive possession.
The jury instruction for constructive possession reads as follows:
- Constructive possession means the controlled substance is in a place over which the person has control, or in which the person has concealed it.
- In order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the person does not have control, the State must prove:
- (1) control over the controlled substance and
- (2) knowledge that the controlled substance was within the person’s presence.
- Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.
- Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.
Constructive possession gives the State a way to charge two or more people with the same drugs. However, it can also be a good defense. If you have questions about whether or not the State may be able to prove a charge of constructive possession against you, you should consult an attorney with experience in presenting this type of defense.
Manufacture, Sale or Delivery
Florida statue 893.13 deals with the manufacture, sale and delivery of illegal substances. Penalties vary according to the amount manufactured or sold, and whether the crime was committed in a drug free area, such as a school, park or church.
Florida statue 893.02(15)(a) defines “manufacture” as: “the production, preparation, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container. . .”
“Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. It is the common understanding of trading some type of money or other valuable object for the drug.
“Deliver” or “delivery” means the “actual, constructive, or attempted transfer from one person to another of a controlled substance…”
If you are found to be preparing a drug for sale by making or packaging it, the State will probably charge you with manufacturing. If you are caught actually exchanging the drug for some type of payment, then you will most likely be charged with sale. If you are taking it from one place to another or from one person to another, you will more than likely be charged with delivering the drug. However you are charged it is still a criminal act.
What does it mean to “manufacture” marijuana?
When it comes to marijuana, “manufacture” usually means growing plants.
What is possession with intent to sell, manufacture or deliver?
In the simplest of terms, “possession with intent” means that you had in your control some type of controlled substance. But instead of simple possession where you have it for your own personal use, you have possession of the controlled substance because you intend on selling it or distributing it, or packaging it to another person.
Sometimes the State determines this by the amount of the drug you have and how it is packaged. For instance, if you have multiple baggies of marijuana that add up to an ounce, the State my assume that you are selling bags of marijuana rather than charging you as if you had an ounce of marijuana for personal use. So if all the marijuana was in one bag, the State may charge you as if you bought an ounce for yourself. If it is in more than one bag, the State may assume you are selling it or that you have some for someone else and they may charge you with possession with intent.
What does the state have to prove to convict me of manufacture or sale or delivery of marijuana?
Like every other criminal act, there are certain elements the State must prove in order for you to be convicted of manufacture, sale or delivery of any controlled substance. These elements are as follows:
1. That you:
Sold – “Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.
Manufactured – “Manufacture” means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis.
Delivered – “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.
2. The substance was actually marijuana.
In a case of possession with intent to sell, manufacture or deliver, the State must show in addition to the elements listed above that you had:
- Possession – To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.
- Knowledge – That you had knowledge of the presence of the substance (if you are charged with possession with intent). If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.
If the State is able to prove these elements, you can be found guilty of the charge. If they cannot prove all of these elements then you can be found not guilty. If you are found guilty or enter a plea of guilty to the charge then you will be sentenced by the judge. Before you plea, you should speak with a qualified defense attorney to explore defense options. In some cases the State may be unable to prove some of the elements of the charge. If this is so you may be able to avoid a lengthy jail stay.
What are the penalties for manufacturing, selling or delivering marijuana?
The maximum penalty for the crime of manufacture or sale of marijuana depends on the amount of marijuana you manufacture, sell or deliver.
If you deliver or give away 20 grams of marijuana or less, without being paid, you can be found guilty of a first degree misdemeanor. This is a crime punishable by up to one year in the county jail or one year of probation, or a combination of both. There is also a two year license suspension for this crime.
In general, the charge of sale, delivery or manufacture of marijuana is a third degree felony punishable by up to five years in a Florida State prison. There is also the possibility of up to five years of probation, five years community control or a combination of any of those punishments. If you are placed on probation or community control, it is very likely that you will have to undergo drug counseling and that you will be randomly tested for marijuana (or any other drug) during your probation or community control period.
However, there are certain enhancements that can change this so that the charges are more severe.
What types of enhancements can give me more jail time for the crime of manufacture or sale of marijuana?
Manufacture or sales (or possession with intent to manufacture or sell) within 1,000 feet of a drug free area.
There are several places that are considered to be “drug free” areas. If you are caught growing plants or selling marijuana within 1000 feet of any of these areas, you can face a second degree felony punishable by up to 15 years in a Florida State prison. In some cases there is a three year minimum mandatory sentence that must be served day for day. In addition there are mandatory fines and community service that must be imposed if it is proven that you sold or grew marijuana within 1000 feet of the drug free zone. These places that are designated by law as “drug free” are:
- Daycare centers
- Community or Recreation Centers
- Public Housing Properties
- Assisted Living Facilities
If you are convicted of selling, manufacturing or delivering a controlled substance within 1000 feet of any of these areas, you may face a 3 year minimum mandatory prison sentence that must be served. The mandatory sentence depends on the type of drug you are selling and the amount being sold.
You may also face a $500 mandatory fine and 100 mandatory community service hours if you are convicted of manufacturing, selling or delivering drugs in these areas. This may not seem like a big deal, but in order to enforce these penalties the Courts usually place the offender on probation. This carries lots of restrictions and fees. Plus, if you violate the probation by not paying or completing the hours, you could face an additional criminal charges and significant jail or prison time.
In addition, if your charge was a 3rd degree felony, such as with sale of marijuana, the penalty is enhanced one level. This means instead of being a 3rd degree felony punishable by up to five years in prison, it is now a 2nd degree felony punishable by up to 15 years in prison. So your exposure for a long sentence increases tremendously if you are caught in one of these areas.
How do they measure 1000 feet?
In discussions about how the 1000 feet should be measured, the purpose is to measure 1000 feet in any direction from the property. If you think that a measurement is incorrect or that you have been not been charged properly you need to contact an attorney well versed in these cases. The measurement, and how it is proven, can be tricky. Only a professional attorney with experience in defending these types of charges would be able to accurately explain how this is done.
Are there any other enhancements that I may face?
Florida Statute 893.13(4)(b) makes it a second degree felony to sell any controlled substance, including marijuana, to a child under the age of 18. It is also illegal to ask them to manufacture, sell or deliver any controlled substance for you. If you do, you can be charged with a second degree felony and face up to 15 years in prison. If you are sentenced to prison time, the prison term may not be suspended, reduced, or replaced with probation time. This means any sentence is served day for day.
How do they prove the enhancement of involving a person under 18 years of age in a drug charge?
To prove the enhancement of involving a person under 18 years of age in the sale, manufacture, or delivery of a controlled substance, the State must prove the following three elements beyond a reasonable doubt:
1. a. You delivered a certain substance to a person under the age of 18 years of age; or
b. You used or hired a person under the age of 18 years of age as an agent or employee in the sale or delivery of a certain substance; or
c. You used a person under the age of 18 years to assist in avoiding detection or apprehension for any drug charge.
2. The substance was a controlled substance.
3. You were 18 years of age or older at the time you involved the person under 18 in the act.
If the State is able to prove these elements beyond a reasonable doubt, you can be sentenced to up to 15 years in prison.
What is the crime of “Maintaining a Drug Property”?
Florida Statute. § 893.13(7)(a) makes it a crime to keep or maintain a store, warehouse, vehicle, or other structure in Florida for the purposes of growing or storing marijuana. It is also illegal to use such a structure as a point from which to distribute or sell marijuana or other drugs. Violations are a first degree misdemeanor, punishable with up to one year in jail.
This type of charge can also lead to civil forfeiture actions as well as the criminal charge. A forfeiture action is a civil suit filed by the State to try to take away the property that is involved. This is separate from any criminal actions and can lead to large legal fees in addition to any criminal penalties.
When this type of charge is initiated by the State, the investigating agency often causes extensive damage to the property. In the case of houses they may break doors and take apart carpet, molding or cabinets looking for hidden places. In the case of vehicles the authorities may strip the car down taking out seats and tearing out dashes. In these cases it is almost impossible to recover any money to repair the damages.
What if I rent the home out to others?
If you rent the home and you know that the person you are renting to is using the property for this illegal purpose, the State may take action against you as well.
For any of the manufacturing, sale or delivery charges, you can also face a two year driver’s license suspension. If you are convicted of a felony, you can lose rights to vote, possess a firearm, and it may cost you a job. If you are a student it can cut off your financial aid, and if you are receiving public benefits such as assisted housing you can lose that as well. Some housing and community associations may also take action to have you evicted from the neighborhood.
These are all stiff penalties. If you have been accused of selling, manufacturing or delivering drugs, contact an aggressive and experienced attorney to discuss your defense strategy immediately!!
Florida Statute § 893.135(1)(a) defines the penalties for trafficking as one who “knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of 25 pounds of cannabis, or 300 or more cannabis plants…” Trafficking in marijuana is a first degree felony known as “trafficking in cannabis,” which is punishable with up to thirty years in prison, and depending on the specific amounts involved, may include additional penalties such as large fines.
The amount of jail time and the fine you will receive depends on the amount of marijuana that you have (or the amount the State can prove). The basic schedule is as follows:
- If you are convicted of having between 25 and 2,000 pounds of marijuana, or between 300 and 2,000 marijuana plants. Florida Statute 893.135(a)(1) provides for a mandatory minimum sentence of three years in prison and a fine of $25,000.
- If you are convicted of having between 2,000 and 10,000 pounds of marijuana, or between 2,000 and 10,000 plants Florida Statute 893.135(a)(2) provides for a mandatory minimum prison sentence of seven years in prison, and a fine of $50,000.
- If you are convicted of having between 10,000 pounds or more of marijuana, or 10,000 plants or more Florida Statute 893.135(a)(3) provides for a mandatory minimum of fifteen years in prison, and a fine of $200,000.
- As you can see, these are very, very severe penalties. Mandatory jail sentences are served day for day. In addition you lose the rights associated with becoming a convicted felon. You will also lose your driver’s license for a period of two years.
What does the State have to prove to convict me of trafficking charges?
Just like other criminal offenses, the State has to prove its case by showing each and every element beyond a reasonable doubt. To prove the crime of Trafficking in Cannabis, by law, the State must prove the following three elements:
That you knowingly:
- brought into Florida; or
- possessed a certain substance.
That the substance you sold, purchased, manufactured, delivered, brought into Florida or possessed was marijuana; and that
The marijuana weighed more than 25 pounds or constituted 300 or more cannabis plants.
If the State is able to prove those three elements beyond a reasonable doubt you can be convicted of trafficking and face the mandatory time in prison as well as the mandatory fines. If you are charged with trafficking you MUST consult an experienced attorney at once! Trafficking charges are serious matters and should not be handled by an attorney without the proper knowledge and experience.
Importing Marijuana into Florida
Florida Statute 893.13(5) makes it illegal to bring any amount of marijuana into Florida from out of state, even if he amount is less than the definition for trafficking. If you do, you can be found guilty of a third degree felony, punishable with up to five years in prison. In addition you will become a convicted felon and lose your driving privilege for two years.
No matter what classification of drug charge you face, you will need quality representation. Receiving a conviction for any type of drug charge is extremely serious! You can become a convicted felon and lose many constitutional rights. You can lose your driving privilege. You can receive monumental fines. You may possibly lose your property!! Don’t let this happen to you! Protect your rights! Call the law offices of Finebloom, Haenel & Higgins today!! Our professional and dedicated staff has over 20 years of combined experience in criminal defense. We can explore every option for you. We will discuss all of the available defenses and custom create a strategy unique to your situation. Call us now at (888) 424-7777. Our attorneys are available 24/7 to protect your rights. Call us now and fight your case today!