Florida Statute 893 criminalizes possession with intent to distribute (also known as possession with intent to sell). Possession with intent to distribute means that in addition to a person having possession of the drugs in a legal sense, they also had the intent to sell or distribute them. First, the prosecution must prove possession, with all the same elements as a possession of a controlled substance charge. Then, if they can prove that, they must also prove the intent to sell or distribute the controlled substance.
Elements of Possession
The prosecution must prove three things to demonstrate possession. First, the person must possess a drug. Second, that drug must be a controlled substance such as marijuana or heroin. Third, the person must know of the drug’s presence. Note that the law does not require knowledge of the drug’s illegality for purposes of possession.
The law recognizes two ways that a person may “possess” a drug. The person’s possession may be actual, in that the person carries the drug with them, or it may be constructive, which means that they had control over the drug even if they were not carrying it at the time
Intent to Distribute
Once the prosecution proves the elements of a standard possession charge, they must also show that the defendant intended to sell or distribute the drugs. The prosecution can do this in several ways. Courts will commonly look at the amount of drugs in question, and try to determine whether the amount exceeds what someone would need for personal use. They can then take that as evidence of a person’s intent to sell. They will also look for other signs of a person’s intent to sell, such as packaging the drugs into separate containers for distribution, or carrying equipment used in drug transactions, such as scales.
Florida law recognizes possession of marijuana as either a third or second degree felony depending on the amount and type of the marijuana possessed. The law classifies the intent to distribute hash or marijuana bud as a third degree felony, punishable by up to five years in prison and a fine of 5,000 dollars. On the other hand, the law views possession with intent to distribute more seriously if the person possesses marijuana plants. Courts will view a person’s possessing 25 or more marijuana plants as evidence of intent to distribute, a second degree felony punishable by up to 15 years in prison and a 10,000 dollar fine.
Florida law classifies possession of cocaine with intent to distribute as a second degree felony. The offense is punishable by 15 years in prison and a 10,000 dollar fine. The court may upgrade the offense to a first degree felony if the possession with intent to distribute occurs within 1,000 feet of a school or college, church or other place of worship, community center, child care facility, a public housing facility, or an assisted living facility. First degree felonies trigger mandatory minimum sentences of three years, with maximum penalties of up to 30 years in prison and a fine of 10,000 dollars.
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