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Florida Drug Possession Laws

Overview of Florida Drug Possession Laws

Drug possession is an offense by someone who did not manufacture, distribute, or sell the controlled substance. Instead, the defendant likely held the controlled substance for personal use. Possession of most controlled substances specified by Florida state laws may be charged as a third degree felony. The Florida legislature also recently added bath salts and "Spice" to the list of banned substances. State law allows a first degree misdemeanor charge for simple possession of cannabis -- marijuana -- in an amount less than twenty grams. 

To establish the elements of drug possession, a Florida state prosecutor must show:

  • The illegal nature of the controlled substance: The prosecutor must present evidence that the seized material is a controlled substance as defined by Florida law. This element generally requires scientific analysis by a crime lab.
  • The defendant's knowledge of the drug: The prosecutor must show that the defendant actually knew or should have known about the illicit nature of the controlled substance and its presence.
  • The defendant's control of the drug: The prosecutor must prove that the defendant had control over the location and presence of the controlled substance. A prosecutor likely has a more straightforward case if the defendant had the drugs on the defendant's body or in a container held by the defendant. However, the prosecutor can also establish the defendant's control by describing the location where the drugs were found and showing that the defendant controlled the premises.

"Possession with intent to sell" includes all legal elements of simple possession, but also requires proof of the defendant's intent to sell or distribute the drugs. The specific charge depends on the type of controlled substance involved in the crime. For example, a state prosecutor may bring a third degree felony charge for marijuana possession with intent to sell. In contrast, possession of cocaine with intent to sell may be charged as a second degree felony. Some controlled substances with medicinal qualities, such as prescription drugs, may qualify for misdemeanor charges.

Defenses to Drug Possession Charges

  • Lack of knowledge that the material was a controlled substance
  • Valid prescription from a medical professional
  • Entrapment arranged by police
  • Fourth Amendment violation due to unlawful search and seizure

Penalties and Sentences

Florida state laws set a range of punishments for drug offenses. The potential punishment for a drug possession charge depends on the type of controlled substance, the type of charge, and the degree of the misdemeanor or felony. The sentence for a misdemeanor conviction depends on the degree of the charge. A second degree misdemeanor may lead to a sentence of imprisonment for up to sixty days, while a first degree misdemeanor can result in a sentence of up to one year.

In a drug possession case for a third degree felony, the term of imprisonment can last for up to five years and require a fine up to the amount of $5,000. However, a second degree felony charge may result in a term of imprisonment for up to fifteen years and a fine in an amount up to $10,000.

Florida state laws also require an increased sentence if the defendant has a violent criminal history with prior felony convictions; the state refers to these defendants as "career criminals" and "habitual felony offenders." While the court cannot require an enhanced sentence when the current conviction is for drug possession, a felony conviction in the current case could affect future sentencing if the defendant faces additional charges.

Florida Drug Possession Statute

Florida Statutes Section 893.13

Note: State laws are constantly changing -- please contact a Florida criminal defense attorney or conduct your own legal research to verify the state law(s) you are researching.

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