Apr 20, 2017
Marijuana possession in Florida can either be a misdemeanor or felony depending on the amount. Just because you are charged with a misdemeanor amount doesn’t mean you’re going to get a break. The penalties are still extremely harsh in Florida even though medical marijuana has been legalized.
According to Florida Statute 893.13, it is a 1st degree misdemeanor to be in possession of less than 20 grams of cannabis. The penalties include up to 1 year in the county jail, probation, and a driver’s license revocation.
The State has 3 elements they must prove, each beyond a reasonable doubt:
1. The Defendant knew of the presence of a substance.
2. The Defendant exercised control or ownership over that substance.
3. The substance was cannabis.
The State can prove possession in 2 ways: actual or constructive possession. Many people think they cannot be arrested and charged with marijuana possession if it isn’t found on them, but that isn’t the case.
Actual Possession means the person is aware of the presence of the marijuana AND one of the following:
1. The marijuana is in the person’s hand OR
2. The marijuana is in a container in the person’s hand OR
3. The marijuana is so close that it is within ready reach and is under the person’s control.
This last one is a bit tricky, and the State uses it frequently to try to prove actual possession.
Constructive Possession means the person is aware of the presence of the marijuana, the marijuana is in a place over which the person has control, and the person has the ability to control the marijuana.
Seems easy to prove, doesn’t it? However, simply being close to the marijuana isn’t enough for constructive possession. The statute also says “mere proximity is not sufficient to establish the power and intention to control that substance when the substance is in a place that the person does not control.
But the statute goes even farther allowing the State to establish constructive possession of marijuana even when it was in a place that the person did not control. In order to prove constructive possession in this scenario, the State must prove that the person knew that the marijuana was within his/her presence AND the person exercised control or ownership over the marijuana itself.
Marijuana possession laws get even more complicated with Joint Possession (as in more than one person.) With joint possession, two or more persons may be aware of the presence of marijuana and may jointly exercise control over it. In that case, each of those persons is considered to be in possession of the marijuana and can be charged.
Marijuana possession can be defended several ways including attacking the legality of the search and seizure leading to the arrest or Notice to Appear through a Motion to Suppress. If the Judge finds there was an illegal search or seizure, the marijuana will be deemed “fruit of the poisonous tree” and not allowed at trial. You can also raise the affirmative defense at trial of lack of knowledge of the illicit nature of the substance.
Even if these defenses don’t apply to your specific case, a criminal defense attorney can assist you in alternate resolutions. You may be able to receive a withhold of adjudication or entry into a pre-trial diversion program. Contact The Law Office of Tiffany H. Poore for your free consultation.