POSSESSION OF LESS THAN 20 GRAMS OF CANNABIS
DEFINITION, PENALTIES, AND DEFENSES
In Florida, possession of less than 20 grams of cannabis is a first degree misdemeanor, with penalties that include jail, probation, and a driver’s license revocation. Marijuana possession is a highly defendable charge, and an attorney is critical for avoiding the harsh consequences of a conviction.
Definition of Possession
Under Florida law, possession of a controlled substance, such as marijuana, is defined as the ability to exercise the right of ownership, management, or control over contraband. Possession may be “actual” or “constructive” in nature.
“Actual” possession means that the cannabis is in the hand of the person accused, or is in a container in the hand of a person, or is so close as to be within “ready reach,” and is under the control of the person accused. Harris v. State, 954 So. 2d 1260, 1262 (Fla. 5th DCA 2007).
Mere proximity to a controlled substance such as cannabis or pot or weed is not sufficient to establish control over the substance when the substance is not in a place over which the person has exclusive control.
- Sundlin v. State, 27 So. 3d 675, 676-77 (Fla. 2d DCA 2009) (holding evidence insufficient to prove actual possession despite the fact that crack pipe was within defendant’s ready reach on nightstand less than a foot from where defendant was lying on hotel room bed because State presented no evidence linking him to pipe other than his proximity to it, nor did it prove defendant had control over hotel room premises).
“Constructive” possession means that the controlled substance is not on the physical person, but is in a place over which the defendant has control, or in which the defendant has concealed it.
In order to prove constructive possession, the prosecution must establish:
- the defendant’s dominion or control over the controlled substance, and
- the defendant’s knowledge that the controlled substance was within the defendant’s presence.
- Franks v. State, 199 So. 2d 117, 120 (Fla. 1st DCA 1967)
If a person has exclusive possession of a substance, such as cannabis, knowledge of its presence may be inferred or assumed. Hively v. State, 336 So. 2d 127, 129 (Fla. 4th DCA 1976). However, where more than one person has access to or is near the contraband, knowledge and control must be established by independent proof. Smith v. State, 123 So. 3d 656, 658 (Fla. 2d DCA 2013).
In constructive possession cases, proof of “dominion” and “control” requires more than the mere ability of the defendant to reach out and touch an item of contraband. Martoral v. State, 946 So. 2d 1240, 1243 (Fla. 4th DCA 2007). Thus, even where drugs are found in plain view, the evidence will be insufficient to establish constructive possession unless there is evidence that the defendant actually exercised dominion and control over the drugs. Id.
Mere proximity to a controlled substance, such as marijuana, is insufficient to establish constructive possession. Gizaw v. State, 71 So. 3d 214, 217 (Fla. 2d DCA 2011); Torres v. State, 520 So. 2d 78, 80 (Fla. 3d DCA 1988); Cruz v. State, 744 So. 2d 568, 569 (Fla. 2d DCA 1999) (reversing a possession conviction where the State’s evidence merely showed that a crack pipe was found next to the gas pedal of a vehicle driven by defendant with a passenger).
Proving Possession of Cannabis
In Florida, there are three elements required to prove possession of under 20 grams of marijuana:
- The defendant possessed a certain substance (actual or constructive);
- The substance was cannabis (less than 20 grams); and
- The defendant had knowledge of the presence of the substance.
- SeeFla. Std. Jury Instr. (Crim) 25.7
Knowledge that the Substance is Illegal
One of the harshest aspects of Florida’s marijuana possession laws is that, to obtain a conviction, the State is not required to prove that the defendant knew of the illegal or illicit nature of the substance possessed. Knowledge that a substance was present is sufficient to support a conviction. State v. Adkins, 96 So. 3d 412, 423 (Fla. 2012).
Rather than making knowledge of illicit nature of the substance an element of the offense that the State must prove at trial, the Florida legislature amended Chapter 893 in 2011 to make knowledge of the illicit nature an affirmative defense. See § 893.101.
The amendment to Chapter 893 means that, even though a defendant may not have known of the nature of the substance, the burden rests with the defendant to prove this lack of knowledge. Adkins, 96 So. 3d at 423.
Under Florida law, it is possible for two or more persons to be in “joint possession” of a substance, such as cannabis, if the premises where the contraband is found are occupied by multiple persons..
However, to establish “joint possession,” knowledge of the presence of the substance and the defendant’s ability to exercise dominion and control over the substance must be established by independent proof. Hall v. State, 382 So. 2d 742, 743 (Fla. 2d DCA 1980). Knowledge and control may not be inferred or based on mere presence or proximity. Giddens v. State, 443 So. 2d 1087, 1088 (Fla 2d DCA 1984).
Penalties for Possession of Marijuana
The penalties available for a marijuana possession charge will depend on the amount of cannabis at issue. Where a defendant is found in possession of less than 20 grams, the offense is classified as a first degree misdemeanor, with penalties of up to one year in jail or one year probation, and a $1,000 fine.
A conviction for misdemeanor marijuana possession will result in a one-year driver’s license revocation, in addition to a likely term of probation.
If a probationary sentence is imposed, the defendant will be subjected to intrusive random drug testing and be responsible for paying costs of supervision, court costs, fines, costs of prosecution, and completing all other terms and conditions imposed by the court.
Other penalties for possession of marijuana in Florida include the following:
- Ineligibility for some government employment;
- Ineligibility for Bright Futures Scholarships and other forms of State financial aid;
- Interference with State licensing, permitting, and certifications without completion of an approved drug treatment program;
- Ineligibility for public housing;
- Interference with employment prospects and college applications;
- Damage to reputation.
Defenses to Possession of Marijuana
Cannabis possession is a highly defendable criminal charge, both on legal and factual grounds.
The first angle of attack in a marijuana possession case is to challenge the legality of the search, detention, or traffic stop that led to the arrest or Notice to Appear. If appropriate in the case, this is done through the filing of a Motion to Suppress Evidence.
A Motion to Suppress is a legal challenge to the constitutional validity of a law enforcement officer’s actions. Where police act unlawfully, any evidence they derive as the “fruit” of their illegal actions will be excluded from evidence under the Fourth Amendment “exclusionary rule.”
Common issues that can cause the suppression of evidence concerning cannabis in Florida include the following:
- Police lacked probable cause or reasonable suspicion to conduct a traffic stop;
- Police lacked probable cause or reasonable suspicion to detain or arrest a defendant;
- Invalid search warrant;
- Invalid execution of a search warrant;
- Lack of a search warrant;
- Invalid consent to a search;
- Cannabis or marijuana was not in “plain view;”
- Unlawful prolongation of an otherwise valid traffic stop or investigatory detention;
- Unlawful “pat down,” or “Terry” search;
- Unlawful search incident to arrest;
- Invalid K-9 search or unsubstantiated K-9 “alert;”
- Exceeding the scope of an otherwise valid consensual search;
- Miranda violations;
- Violations of right to counsel;
- Police officer’s mistake of law leading to traffic stop or investigative detention;
- Evidence tampering or destruction of evidence;
- Chain of custody issues;
- Lack of valid third party consent;
- Any other illegal police activity.
The second angle of attack in a possession case is to identify factual defenses to challenge the State’s proof or to provide the accused with an affirmative defense. Common factual defenses include the following:
- Can the State prove that the defendant had knowledge of the cannabis or marijuana?
- In constructive possession cases, did the defendant have dominion and control, or did some other person exercise dominion or control?
- In constructive possession cases, did the accused have knowledge of the illicit nature of the cannabis (i.e. that the substance was in fact contraband)?
- Did the accused possess the cannabis for purposes of a lawful temporary disposition?
- Was the accused in exclusive possession of the premises or vehicle?
- Is there a proper chain of custody for purposes of introducing the seized marijuana or pot into evidence?
- Does the State’s case rely in whole or in part on testimonial hearsay under Crawford?
- Was the accused entrapped?
- As a whole, is there sufficient evidence to prosecute the case?
Pretrial Intervention Programs for Misdemeanor Marijuana Cases (Under 20 Grams)
Even where no viable defenses exist to a possession of marijuana charge, it is often possible to obtain an eventual dismissal of the charges by negotiating to enroll a defendant in a misdemeanor or felony Pretrial Intervention Program.
These programs call for a defendant to complete specified requirements within a set time period pursuant to an agreement between the State Attorney’s Office and the accused. If completed successfully, the State Attorney’s Office will drop the charges and the case is dismissed.
Contact an Attorney
If you have been accused of cannabis possession in Jacksonville or Orlando, Florida, you may have defenses available to contest the charge or to minimize potential penalties. Contact the attorneys at Hussein & Webber, PL for a free consultation.
Even a first-time drug possession charge in Florida can have lifelong consequences. In fact, depending on the amount and type of drug you are accused of possessing, you could be charged with a first-degree felony, which is punishable by up to 30 years in prison.
Penalties for Possession of a Controlled Substance
According to the Florida Statutes, a first-degree felony is punishable in Florida by up to 30 years in prison and a fine of up to $10,000. A second-degree felony is punishable by up to 15 years in prison and a fine of $10,000.
In Florida, possession or use of drug paraphernalia is classified as a first degree misdemeanor, with penalties that may include up to 365 days in jail or 12 months probation, and a $1,000 fine.
For most misdemeanor defendants, and especially those facing first-time charges for a non-violent offense, being convicted of a misdemeanor charge does not result in incarceration.
First time offenders that have no criminal record, no prior criminal history with the police and are facing charges for a relatively minor, non-violent crime are far less likely to receive jail time. But, there are still many reasons why they might.
Possession. Possession of 20 grams or less of cannabis is a misdemeanor punishable by a maximum sentence of 1 year imprisonment and a maximum fine of $1,000. Possession of more than 20 grams of cannabis is a felony punishable by a maximum sentence of 5 years imprisonment and a maximum fine of $5,000.
Florida law defines constructive possession as having three criteria instead of two: not only knowledge of the presence of drugs, and the knowledge that the substance in question is illegal, but also control over the drugs or the place where they are located.
In Florida, it's a crime to be in possession of a controlled substance. The level of charge you could face for an offense depends on several factors, including the type and the amount of drugs. In many cases, drug possession is a felony. However, in some instances, it is charged as a misdemeanor.
If you can prove you were not aware of the presence of paraphernalia or had no intention of possessing them, your charges might be dropped or reduced. A good example is where someone else planted the paraphernalia in your car, in-person, or in your residence without your consent or knowledge.
Paraphernalia sentence example. We don't know if Quinn's paraphernalia has anything to do with your dreams. In the next little work the framework, the whole paraphernalia of the ancient akhyana, is included in the work itself, which is called Udana, or "ecstatic utterances."
Yes, drug paraphernalia are illegal. The drug paraphernalia statute, U.S. Code Title 21 Section 863, makes it “unlawful for any person to sell or offer for sale drug paraphernalia; to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or to import or export drug paraphernalia.”
In Florida, a first-degree misdemeanor can be punished by up to one year in jail. Examples of first-degree misdemeanors include simple battery, disorderly conduct, DUI, indecent exposure, marijuana possession, shoplifting, prostitution, and vandalism, among others.
How long is a misdemeanor on your record? A misdemeanor stays on your record for life unless you successfully petition for expungement. There is no preset “expiration date” for misdemeanor crimes. Even though misdemeanor offenses are less serious than felonies, they are still serious breaches in the eyes of the law.
A misdemeanor is a type of offense punishable under criminal law. A misdemeanor is typically a crime punishable by less than 12 months in jail. Community service, probation, fines, and imprisonment for less than a year are commonly issued punishments for misdemeanors.
That difference is why you often hear about sentences of two years less a day — meaning provincial jail time. The conventional wisdom is that time in a provincial jail is better than in a federal prison, and that a shorter sentence is always better.
Some first time felony offenders go to jail. However, it's possible for a person to receive a sentence for a felony conviction without a period of incarceration.
Second Offense means a violation for which there is only one prior similar violation.
possession as possession inferred from actual possession of another property, for instance possession of the whole inferred from actual possession ... with reference to possession of implements for counterfeiting coins, that possession includes constructive possession.
In Florida, convicted felons who are found guilty of firearm possession can be sentenced to 15 years in prison or probation. Fines of up to $10,000 can also be assessed. One important note is that those found to be in actual possession of firearms as a convicted felon are subject to a minimum sentence of three years.
Although possession of dabs or any other form of concentrated marijuana is a third-degree felony in Florida, our attorneys are familiar with the best ways to fight the charges.
A serious side effect of a Florida drug possession conviction is the mandatory one-year suspension of the person's driver's license that results. The penalty applies to any drug possession — even one not involving a vehicle, such as a marijuana arrest outside a bar.
Felonies and Misdemeanors for Drug Charges in Florida
If you were caught with more than 10 grams of a Schedule One drug, you could be charged with a first degree felony. The penalty is up to 30 years in jail and/or a fine of up to $10,000.
People facing misdemeanors or felonies may receive probation. But there is a difference between probation and felony probation in Florida. Since felonies are more severe offenses, the terms and conditions are more severe. All probationers typically have to pay fines, court costs, and restitution and see their PO.
First Degree Felony. A first-degree felony is punishable by up to thirty years in prison, thirty years probation, and a $10,000 fine. Life Felony. A life felony is punishable by life in prison without the possibility of parole, or probation for the remainder of your life, and a $15,000 fine.
Under Florida law, Grand Theft is any intentional and unlawful taking of property valued at $750.00 or more. Grand theft is a felony offense, with penalties that may include prison, probation, fines, restitution, and a permanent criminal record.
Program. Pre-Trial Diversion is an alternative to prosecution that diverts offenders from criminal court proceedings into a program of supervision. PTD is most often utilized for first-time offenders as referred by the State Attorney's Office.
The short answer is no - not without Court permission. If you are on probation in Florida, you must obtain the permission of the Court before you travel. Probation, by its very nature, will likely restrict your movement to one county (the county in which you reside).
- Missing court or probation meetings.
- Failing to pay fines or restitution.
- Failing drug and alcohol tests.
- Failing to maintain employment.
- Incomplete community service.
- Unapproved associations with felons.
- Crossing state lines.
- Committing a new crime.
If you are placed on probation, you must maintain a clean record and meet with a probation officer. You may be obligated to refrain from drinking or using drugs during your probation. The Florida Department of Corrections supervises individuals on probation.
Once these 5 criteria are satisfied, a judge is required to impose the minimum mandatory term of imprisonment specified by Florida law as follows: Life felony = Life imprisonment. First-degree felony = 30-year prison term. Second-degree felony = 15-year prison term.
Only the state attorney can waive a mandatory minimum sentence. Many crimes carry mandatory minimum sentences. Everything from DUI to drug trafficking to firearm crimes (10-20-Life). However, a good defense attorney can often persuade the state attorney to waive a mandatory minimum sentence.
In general, felony offenses, whether state or federal, carry a minimum sentence of one year in prison. Federal felony crimes are divided into classes, with increasing maximum sentences based on the severity of the crime: Class "E" felonies are the least serious and carry penalties of up to three years in prison.
In Florida, Petit Theft is the taking of property valued at under $750 with the intent to deprive the owner of a right or benefit in the property. Petit theft is generally a misdemeanor offense, with penalties that may include jail, probation, community service, and restitution.
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- Battery: ...
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- Concealed Weapon: ...
- Criminal Mischief: ...
- Disorderly Conduct on the Premises of a Licensed Establishment: ...
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Pursuant to the Disciplinary Guidelines for Mortgage Loan Originators and Mortgage Entities Form OFR-494-14, Incorporated by Reference in Rule 69V- 40.111, Florida Administrative Code, an "A" level fine is $1,000 to $3,500; a "B" level fine is $3,500 and $7,500; and a "C" level fine is $7,500 to $10,000.