Selling, Purchasing, Manufacturing, Delivering, or Possessing Drugs with Intent - Florida Statute 893.13

drug crimes

Chapter 893 of the Florida State Statutes deals with drug abuse. Section 893.13 addresses illegal acts involving controlled substances (“drugs”) such as buying, selling, manufacturing, delivering, possessing controlled substances with intent to sell, manufacture, or deliver to adults or minors anywhere. This section lists different crimes which will be discussed below.

Section 893.03 lists controlled substances in five schedules. The substances that are listed in the five schedules are listed according to their potential for abuse and their medical use. Schedule I drugs have the highest potential for abuse with no medical use and Schedule V drugs have the lowest potential for abuse with medical use. The reason the drugs are put into schedules is because the statute listing the crime can simply refer to the schedule instead of a huge list of drugs. It is not illegal to possess certain schedule drugs if you have a prescription.

Schedule definitions with some common examples of drugs in the schedules:

  • Schedule I - (High potential for abuse with no currently medical accepted treatment in the US)
    • Cannabis, Heroin, Lysergic acid diethylamide (LSD), Peyote, Tetrahydrocannabinols,
  • Schedule II- (High potential for abuse and currently accepted but severely restricted medical use in treatment in the US)
    • Opium, Hydrocodone, Morphine, Oxycodone, any part of a poppy plant, Cocaine, Methamphetamine (Meth),
  • Schedule III – (Potential for abuse and currently accepted medical use in treatment in US)
    • Anabolic steroids
  • Schedule IV – (Low potential for abuse and has a currently accepted medical use in treatment in the US)
  • Schedule V – (Low potential and current medical use)
Florida Statute 893.13(1)(a) and(2)(a) - Sale, Purchase, Manufacture, Delivery, or Possession with Intent to Sell, Manufacture, or Deliver

These paragraphs make it illegal for a person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver a drug. These paragraphs are written so broadly that they can criminalize anyone associated with the drugs.

What the State Prosecutor Has to Prove to Convict a Defendant

The state prosecutor has to prove beyond a reasonable doubt:

(1) The defendant sold, purchased, manufactured, delivered, possessed with intent to sell, possessed with intent to purchase, possessed with intent to manufacture, or possessed with intent to deliver a substance; and

(2) The substance was a controlled substance.

Actual vs. Constructive Possession

For cases involving possession, this crime (possession with intent to sell, manufacture, or deliver) or the crime of mere possession, the prosecutor is going to have to proof possession. Possession can be proving by actual possession or constructive possession.

Actual possession is proven by showing:

(1) The controlled substance is in the hand of or on the person;

(2) The controlled substance is in a container in the hand of or on the person; or

(3) The controlled substance is so close as to be within ready reach and is under the control of the person.

Constructive possession is proven by showing the drugs were:

(1) In a place where the defendant has control or concealed it; or

(2) In a place not under the defendant’s control but the defendant had:

  1. Control over the controlled substance; and
  2. Knowledge that the controlled substance was within the defendant’s presence.

Two or more people can have joint possession which means that each person is considered to have possession of the drugs. For example, an open bag of marijuana brownies in plain sight in the center console between the driver and passenger may be considered sharing by some folks, however, it would be called constructive possession by the prosecutor.

Punishment

The punishment depends on what drug was involved because generally the higher the schedule, the more punishment. Also, if there were 10 or more grams of a Schedule I drug, the crime is punished as a first-degree felony. The punishments range between second-degree felonies to first-degree misdemeanors depending on which drug is involved.

Florida Statute 893.13(6)(a) – Mere Possession of a Controlled Substance

A person normally gets charged with this crime because they were arrested for some other crime and the drugs were found on them or inside their car.

What the State Prosecutor Has to Prove to Convict a Defendant

The state prosecutor has to prove beyond a reasonable doubt:

(1) The defendant actually or constructively possessed a certain substance;

(2) The substance was a controlled substance;

(3) The defendant had knowledge of the presence of the substance; and

(4) The defendant did not have a legal justification to possess the substance under sub-section (9). (Doctors, pharmacists, common carriers, etc.)

Punishment

The punishment depends on the drug and the quantity. Generally, possession is a third-degree felony. However, if it is less than 20 grams of marijuana, the crime is punished as a first-degree misdemeanor. Also, certain controlled substances less than 3 grams are also punished as first-degree misdemeanors instead of a third-degree felony.

If a person possess more than 10 grams of certain Schedule I drugs, the crime is a first-degree felony.

Florida Statute 893.13(4) – Selling Drugs to a Minor

This crime is aimed at dealers trying to sell to minors or using minors as their agents to sell to other minors.

What the State Prosecutor Has to Prove to Convict a Defendant

The state prosecutor has to prove beyond a reasonable doubt:

(1) The defendant either:

  1. Delivered a certain substance to a person under the age of 18 years;
  2. Used or hired a person under the age of 18 years as an agent or employee in the sale or delivery of a certain substance; or
  3. Used a person under the age of 18 years to assist in avoiding detection or apprehension.

(2) The substance was a controlled substance; and

(3) The defendant was 18 years of age or older at the time.

“Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

Punishment

Like the previous crimes, the punishment depends on the drug involved. Some Schedule I and Schedule II drugs are punished as first-degree felonies while some other Schedule I and Schedule II drugs are punished as second-degree felonies.

A sentence may not be suspended or deferred, and the person so convicted may not be placed on probation.

Florida Statute 893.13(5) – Transporting Drugs into Florida

This crime is trying to prevent anyone from transporting any type of controlled substance into Florida. There is another statute, Florida Statute 893.135, which criminalizes drug trafficking. A person is charged with one of these crimes depending on if the defendant transported into Florida or was already inside Florida and the amount of drugs was more than the statutory limit to define him as a drug trafficker. Drug trafficking carries minimum mandatory sentences while this crime does not, which is helpful for plea deal negotiations. Not all cases can be won so a good Palm Beach Gardens Drug Possession Attorney might persuade the prosecutor and judge to allow his client to plead guilty to transporting drugs where there is no minimum mandatory prison sentence.

What the State Prosecutor Has to Prove to Convict a Defendant

The state prosecutor has to prove beyond a reasonable doubt:

(1) The defendant brought a certain substance into Florida;

(2) The substance was a controlled substance; and

(3) The defendant had knowledge of the presence of the substance.

Punishment

Depending on the drug listed in Schedule I or Schedule II, the crime will be punished as either a second-degree or third-degree felony. All Schedule III or IV drugs are punished as third-degree felonies. A Schedule V drug is punished as a first-degree misdemeanor.

Florida Statute 893.13(1)(c) – (f) – Bringing Drugs into a Certain Area

If you manufactured, sold, bought, possessed or possessed with intent drugs near certain areas listed in these paragraphs, the punishment will be more severe.

If you are within 1,000 feet of:

  • A child care facility or a public or private elementary, middle, or secondary school between the hours of 6:00 a.m. and 12:00 midnight;
  • A public housing facility;
  • A public or private college, university, or other post-secondary educational institution;
  • A state, county or municipal park;
  • A community center;
  • A publicly owned recreation facility;
  • A physical place for worship at which a church or religious organization regularly conducts religious services; or
  • A convenience store defined in Florida Statute 812.171.
Defenses

Our Palm Beach Gardens Drug Possession Attorneys will fight to have your charges dismissed; however, sometimes certain cases cannot be won. Our attorneys will then seek to lessen your punishment by arguing that you were not within 1,000 feet of the location as defined in the statutes. Each of the above locations has a specific definition such as the convenience store defined in Section 812.171. For example, if a store was not open between the hours of 11PM to 5AM, the store cannot be a convenience store; thus, the defendant cannot receive the enhanced punishment.

Punishment

The punishment depends on the drug. The enhancement of the punishment ranges all the from a $500 fine and serving 100 hours of public service to a first-degree felony with a minimum mandatory sentence of 3 years in prison.

Florida Statute 893.13(7)(a)9- Obtaining a Controlled Substance by Misrepresentation, Fraud, Forgery, Deception, or Subterfuge

This crime targets individuals who come up with ways to get controlled substances. The individuals are typically looking for prescription drugs. Here is a scenario from a case, the defendant went doctor shopping and received multiple oxycoton and oxycodone pills from prescriptions from multiple doctors, but she never told any of the doctors that she had already received prescriptions from other doctors. See State v. Tamulonis, 39 So. 3d 524, 526 (Fla. 2d DCA 2010).

What the State Prosecutor Has to Prove to Convict a Defendant

The state prosecutor has to prove beyond a reasonable doubt:

(1) The defendant acquired or obtained or attempted to acquire or obtain possession of a certain substance;

(2) The substance was a controlled substance; and

(3) The defendant acquired or obtained or attempted to acquire or obtain the substance by misrepresentation, fraud, forgery, deception, or subterfuge.

Punishment

This crime is a third-degree felony which is punishable up to 5 years in prison and a $5,000 fine.

Defense

No Actual Possession - If the prosecutor is claiming the defendant possessed the drugs, the prosecutor has to show the defendant had actual or constructive possession of the drug to convict him. Actual possession is where the drug is in your pocket, hand, mouth, or lap while constructive is in a place under your control or where it is concealed. For example, crack cocaine in your pocket is actual possession while crack cocaine locked in your glove compartment is constructive.

No Constructive Possession -To prove constructive possession where the defendant does not have control over the place, the state has to show (1) control over the controlled substance and (2) knowledge that the controlled substance was within the defendant’s presence. If the drugs were on the floor of a house that is shared by others, then it is hard to prove constructive possession. See Evans v. State, 110 So. 3d 487 (Fla. 4th DCA 2013). Also, just being close to the drugs is not enough to show constructive possession in a jointly occupied car. See K.A.K. v. State, 885 So. 2d 405, 407 (Fla. 2d 2004).

Knowledge - The lack of knowledge of the illicit nature of a controlled substance is a defense. The state is going to have to disprove this defense beyond a reasonable doubt; however, the jury can presume that the defendant was aware of the illicit nature of the controlled substance if the jury finds that the defendant was in actual or constructive possession of the controlled substance. For example, a person might not know of a cocaine rock on the floor of a car but there is a good likelihood that the person knew of the cocaine rock in his pocket.

Not Enough Drugs - If the prosecutor is charging you with possessing 10 or more grams and you had drugs that could be misidentified (for example, flour for cocaine), “the State must chemically test every individually wrapped packet of white powder seized in order to establish the statutory threshold weight for [this crime], we emphasize that this rule only applies when the substance discovered is one that poses an identifiable danger of misidentification[.]” Greenwade v. State, 124 So. 3d 215, 203 (Fla. 2013).

Exception to the Crime – A person cannot be charged with possession of a drug if they have a prescription from a doctor for the drug.

Individuals who are involved in teaching, testing, or research could potentially get in trouble with this statute. Do you really think a police officer is going to believe you are a “scientist” who just happens to be doing research on drugs and has some drugs in their backseat? A police officer is most likely going to arrest you and have the defense lawyer ask questions later. The statute does provide an exception to the crimes for individuals who work in certain medical, scientific, or law enforcement areas.

Exceptions:

(1) Pharmacists.

(2) Practitioners. (Medical doctors, dentists, optometrists, etc.)

(3) Persons who procure controlled substances in good faith and in the course of professional practice only, by or under the supervision of pharmacists or practitioners employed by them, or for the purpose of lawful research, teaching, or testing, and not for resale.

(4) Hospitals that procure controlled substances for lawful administration by practitioners, but only for use by or in the particular hospital.

(5) Officers or employees of state, federal, or local governments acting in their official capacity only, or informers acting under their jurisdiction.

(6) Common carriers. (United States Postal Service, UPS, FedEx, etc.)

(7) Manufacturers, wholesalers, and distributors.

(8) Law enforcement officers for bona fide law enforcement purposes in the course of an active criminal investigation.

Contact the Law Office of Roger P. Foley, P.A.

If you have been arrested and charged with any one of these crimes, call our law offices to schedule a free consultation. Our Palm Beach Gardens Drug Possession Attorneys need to hear your version of what happened. It is important that we find out the facts about the case as well as who you are as a person. We will fight to get your case dropped, dismissed, or acquitted, but sometimes the case just cannot be won. In these situations, our attorneys will continue fighting for you by focusing on preparing a mitigation package to persuade the prosecutor and the judge to reduce your charges or reduce your sentence. Call us today so we can start preparing your defense.

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