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In Florida, possession of marijuana is a serious criminal offense, which may carry misdemeanor or felony penalties, depending on whether the amount of cannabis is over 20 grams or under 20 grams. Section 893.03, Florida Statutes, classifies marijuana as a “Schedule 1” controlled substance and, as such, it is unlawful for a person to be in “actual” or “constructive” possession of any amount of such substance. If you have been charged with possession of marijuana in Jacksonville, Duval County, Clay County, or Nassau County Florida, contact our Jacksonville Criminal Defense Attorney for a free consultation.
In the context of Florida’s strict marijuana laws, possession is defined as the the ability to exercise the right of ownership, management, or control over a thing or substance. Possession in Florida may be “actual” or “constructive” in nature. See Section 893.13(6), Florida Statutes.
Actual Possession means that the controlled substance 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. 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 control.
Constructive Possession of marijuana in Florida means that the controlled substance 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: (i) the defendant’s control over the controlled substance, and (ii) the defendant’s knowledge that the controlled substance was within the defendant’s presence. If a person has exclusive possession of a substance, such as cannabis or cocaine, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of the substance, knowledge of its presence may not be inferred or assumed.
Under Florida law, it is possible for two or more persons to be in “joint possession” of a substance, such as cannabis. In such a case, each of those persons is considered to be in possession of that article or substance. If a person has exclusive possession of a substance, such as cannabis or cocaine, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of the substance, knowledge of its presence may not be inferred or assumed.
Proof Required for Marijuana Possession in Florida
There are three elements required to prove a possession charge in Florida:
One of the harshest aspects of Florida’s drug 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. Rather, lack of knowledge of the illegal/illicit nature of the substance is an affirmative defense that must be raised by the accused. This means that even though a defendant may not have engaged in criminal wrongdoing because he or she did not know of the illegal nature of the substance, it is up to the defendant to prove his or her innocence.
The penalties available for a possession of marijuana charge in Florida 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 two-
Where a defendant is found in possession of more than 20 grams of cannabis, the offense is classified as a third degree felony, with penalties of up to 5 years in prison and a $5,000 fine.
Other penalties for possession of marijuana in Florida include the following:
Although the facts of every case will differ, possession of cannabis or marijuana is a type of charge that easily lends itself to legal and factual defenses.
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 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.” Thus, if a Motion to Suppress is granted, this may deprive the State of Florida of critical evidence (including the cannabis itself) needed to prove the case. Without the required evidence, the case will be dismissed, dropped, or the defendant acquitted.
Common issues that can cause the suppression of evidence concerning cannabis in Florida include the following:
The second angle of attack in a marijuana 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:
These are just a few of the potential defenses that may be raised in a possession of cannabis case in Jacksonville, Duval County, or elsewhere in Northeast Florida. The defenses can be highly technical, and can turn on minute factual details involved in the case. For this reason, hiring a criminal attorney is absolutely critical for successfully defending a marijuana or weed possession case.
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. Pretrial intervention in marijuana possession cases is generally limited to those defendants who have minimal or no criminal history.
If you have been accused of possession of cannabis, marijuana, weed, or pot in Jacksonville, Duval County, Clay County, Nassau County, Florida, you may have defenses available to contest the charge or to minimize potential penalties. Contact an experienced Criminal Defense Attorney in Jacksonville for a free consultation.
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