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Defending Against A Charge Of Possession With Intent To Sell In Florida

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Possession of a controlled substance, in some cases, can quickly escalate to “intent to sell”. This is often based on law enforcement’s perception of a person’s actions and the amount of drugs in their control. Under Florida Statutes Sec. 893.13(1)(a), a person may not “sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance”.

Under certain scenarios – for example, an undercover officer purchases drugs from the defendant during a controlled buy – the intent to sell narcotics is clear. Other times, a simple possession case may be upgraded to possession with intent to sell based on circumstantial evidence or an officer’s hunch. Either way, the defendant faces the same charge and potential penalties.

Penalties for possession with intent to sell can include Second or Third Degree Felony charges, depending on the type of controlled substance involved. Marijuana distribution would be a Third Degree Felony, for example, while the potential sale of cocaine or heroin would involve Second Degree Felony charges and up to 15 years in prison.

For purposes of Florida’s possession with intent to sell law, “sale” means the transfer or delivery of narcotics to another in exchange for money or something of value (or the promise of money or valuables). “Possession” is a separate element, meaning that the defendant had control or dominion over the substance in question. Possession doesn’t always mean the person had the drug “on them” – if it was elsewhere on the property where they had control over it, possession may still apply.

What the State Must Prove to Show Possession With Intent to Sell Drugs in Florida

To prove possession of a controlled substance with intent to sell, deliver, or manufacture, the prosecution must prove beyond a reasonable doubt that:

  • The defendant possessed the substance(s) in question with the intent to sell, manufacture, or deliver to another person or entity;
  • The substance was a controlled substance under Section 893.03, Florida Statutes;
  • The defendant knew the substance was an illicit controlled substance.

Prosecutors must demonstrate both possession of the drug and intent to sell in order to obtain a conviction. Sometimes the evidence might support one element but not the other, leading to a not guilty verdict, a reduced charge of possession only, or a plea deal to some lesser offense.

Some common defenses to a charge of possession with intent to sell or deliver include:

  1. The defendant possessed the controlled substance, but lacked intent to sell or deliver to another. This can often be supported by witness testimony, the amount of contraband found, and other circumstantial factors.
  2. The defendant lacked possession of the controlled substance to begin with. The prosecution first must prove possession under Florida law, meaning the defendant held or exercised control over the substance. If possession can’t be shown, intent to sell can’t be shown either, and the entire case fails.
  3. The defendant did not illegally possess the controlled substance. If an individual held a prescription for the substance in question, or some other lawful reason to possess it, then a charge under Florida Statutes Sec. 893.13(1)(a) can’t hold up in court.
  4. Issues with the search and seizure violated the defendant’s Constitutional rights. Suspects in a drug case have critical protections under the Fourth, Fifth, and Sixth Amendments. If law enforcement obtained evidence or otherwise pursued their case in a way that violated these rights, the defendant may file a Motion to Suppress Evidence, sometimes ending a case before it can get to trial.

Our Tampa Criminal Defense Lawyers Can Help if You Have Been Charged with Possession and Intent to Sell 

If you are facing an investigation or charge for Possession of Drugs with Intent to Sell, Deliver, or Manufacture, don’t hesitate to contact our Tampa drug crimes attorneys at Trombley & Hanes. We have represented many clients in your situation, and will carefully review the State’s evidence and all available facts to prepare the best defense possible. If the situation calls for it, we may also be able to negotiated a reduced charge, or even a dismissal of your case. Call our office at 813-229-7918, or complete an online questionnaire to get started.

Sources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0800-0899/0893/Sections/0893.13.html

floridabar.org/rules/florida-standard-jury-instructions/criminal-jury-instructions-home/criminal-jury-instructions/sji-criminal-chapter-25/

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