Possession, Delivery or Trafficking, F.S. 893.13 & 893.135
In Florida, possession of drugs can be either a misdemeanor or a felony depending on the type of drug and the amount allegedly possessed. If the State Attorney sees evidence of potential sales or an intent to sell, a person can be charged with a higher degree of a felony. In addition to possible incarceration, drug charges can lead to a suspension of your driving privileges. Also, many counties in Florida have a drug court program for which you might be eligible. If you have been charged with this offense, you should contact an attorney immediately to ensure the best possible outcome in your case.
Simple Possession, F.S. 893.13
A charge of simple possession of drug paraphernalia or cannabis is a misdemeanor offense, punishable by up to 364 days in the county jail. Possession of any other controlled substance is a third degree felony punishable by up to 5 year of incarceration in the Florida Department of Corrections. Many counties have created specialty diversion courts, usually called Drug Courts for people who are charged with simple possession offenses. Individuals enter the program and receive treatment and drug testing for a period of time (usually around one year) and, if successful, the charges against them are dropped.
In order to prove a simple possession charge, the State Attorney must prove several elements, which are:
- Defendant knew of the presence of a substance
- Defendant exercised control or ownership over that substance
- The substance was a listed controlled substance
While those are the basic elements of the offense, there are a substantial number of cases that limit the scope of what it means to possess a drug. For example, possession can be actual (on the defendant's person) or constructive (the person is aware of the presence of the substance, the substance is in a place over which the person has control, and the person has the ability to control the substance). Constructive possession cannot be established by mere proximity to a substance, but, on the other hand, multiple people can possess a drug at the same time under the theory of joint possession. Mr. Glassman can review the strengths and weaknesses of your case in light of the complexities of this area of the law.
Delivery, Manufacture, Possession with Intent to Sell, F.S. 893.13
The second class of drug offenses are drug dealing offenses. If the defendant makes an actual transaction, the defendant may be charged with delivery of a controlled substance. If, however, the police do not witness a transaction, but see evidence that is consistent with drug dealing (scales, numerous baggies, lots of foot traffic, etc.), then the defendant may be charged with possession with intent to deliver a controlled substances. Both offenses are second degree felonies in Florida, which means that they are punishable by up to 15 years of incarceration in the Florida Department of Corrections. In addition, if the offense is committed in a special zone (close to a school, church, park, etc.), then the offense can be enhanced to a first degree felony punishable by up to 30 years of incarceration in the Florida Department of Corrections. These are extremely serious offenses and Mr. Glassman will passionately defend you against these allegations.
In order to prove a delivery or possession with intent to deliver, the State Attorney must prove several elements, which are:
- The defendant delivered or possessed with intent to deliver a substance
- The substance was a listed controlled substance
- And, if possession with intent to deliver is charged, that the defendant had knowledge of the presence of the substance.
Delivery is further defined as actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.
Trafficking, F.S. 893.135
The third class of drug offenses are trafficking offenses. While trafficking brings to mind drug arrests involving many pounds of drugs and numerous co-conspirators, the law in Florida allows for trafficking charges in much simpler circumstances. For example, a person may be charged with trafficking for possessing a single bottle full of non-prescribed oxycodone pills. Trafficking is a first degree offense punishable by up to 30 years of incarceration in the Florida Department of Corrections.. All trafficking offenses carry some mandatory sentence, the length of which is based on the amount of substance involved. The mandatory sentences run 3, 7, 15, or 25 years. In Florida, a mandatory sentence is served day-for-day, meaning that the defendant will serve every single day of the mandatory sentence.
In order to prove a charge of trafficking, the State Attorney must prove the same elements as in a simple possession or delivery case with the additional element in regards to weight. Those weights are:
- Cocaine: 28 grams
- Cannabis: 25 pounds
- Morphine, Opium, Hydromorphone, Etc.: 4 grams
- Phencyclidine: 28 grams
- Methaqualone: 200 grams
- Lysergic Acid Diethylamide (LSD): 1 gram
- Amphetamine, Methamphetamine, Pseudoephedrine, Etc.: 14 grams
- Flunitrazepam: 4 grams
- Gamma-Hydroxybutyric Acid (GHB), Gamma-Butyrolactone (GBL): 1 kilogram
- Florida Statute 893.135, Trafficking
- Florida Statute 893.13, Delivery, Possession with Intent to Deliver, Simple Possession
- Drug Offenses Standard Jury Instructions, Florida Supreme Court
- Broward County Drug Court
- Palm Beach County Drug Court
- Miami Dade Drug Court
Recent Appellate Cases
- Palmer v. State, 180 So.3d 1096 (Fla. 1st DCA 2015) - There is no double jeopardy bar to convicting a defendant of both trafficking in methamphetamine and manufacturing a controlled substance (methamphetamine).
- Fletcher v. State, 168 So.3d 330 (Fla. 1st DCA 2015) - In order to establish guilt of the enhanced offense of delivery within 1000' of a religious institution, the State Attorney must show evidence of regularly conducted religious services at the time of offense.
- Smith v. State, 125 So.3d 359 (Fla. 1st DCA 2013) - If the evidence shows joint possession of the premises where drugs are located, or that the defendant was a visitor, the state must establish control over the contraband by independent proof beyond mere proximity, such as by evidence of incriminating statements or circumstances.