Definition and Penalties: Cultivation
In Florida, the growing, cultivation, or manufacture of marijuana (cannabis) is generally governed by Section 893.13(1)(a), Florida Statutes. The statute makes it “unlawful for any person to . . . manufacture . . . or possess with intent to . . . manufacture a controlled substance,” including cannabis. A person who violates this section commits a third degree felony, punishable by up to 5 years in prison and a $5,000 fine.
Florida law defines the “manufacture” of cannabis as the “production, preparation, packaging, labeling or re-labeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly.” Manufacturing can also be “by extraction from substances of natural origin, or independently by means of chemical synthesis,” or by a combination of extraction and chemical synthesis.
Not all cultivation offenses will be charged as a third degree felony. Under Section 893.1351, Florida Statutes, cultivating or manufacturing of marijuana may be classified as a second degree felony, punishable by up to fifteen years in prison, where the accused is in actual or constructive possession of the grow house and is found in possession of more than 25 cannabis plants. If minors are present or residing at the location where the plants are grown, the offense may be charged as a first degree felony.
Proof Required for Cultivation Charges
To prove the crime of cultivation or manufacture of marijuana in Florida, the prosecution must establish the following three elements beyond a reasonable doubt:
- The defendant engaged in manufacturing,
- The manufacturing was of a controlled substance (marijuana/cannabis), and
- The defendant had knowledge of the presence of the marijuana or cannabis.
Defenses to Marijuana Cultivation
Many of the defenses available in ordinary drug possession cases are available with cultivation or manufacturing charges. More importantly, Florida cultivation cases are fertile ground for raising legal defenses that challenge unlawful searches or seizures by law enforcement. This is because the Fourth Amendment protections for a home or business are much broader than those available for an automobile. Since most cultivation busts or sting operations take place at a residence or business, there is a broader range of potential challenges to the conduct of police.
Some common Fourth Amendment defenses available in cultivation cases include:
- Absence of a warrant;
- Defective warrant;
- Unlawful execution of a search warrant;
- Absence of probable cause to obtain a warrant;
- Stale information forming the basis of the warrant;
- Exceeding the scope of the search authorized by the warrant;
- Invalid consent to search;
- Coercive “knock and talk;”
- “Constructive entry” during knock and talk;
- Exceeding the scope of a consensual search;
- Unlawful arrest or detention;
- Absence of exigent circumstances;
- Controlled substances not in plain view;
- Warrantless search within the “curtilage” of a residence;
- Miranda violations;
- Right to counsel violations;
- Overly broad search incident to arrest;
- Overly broad protective sweep;
- Use of unlawful police tactics constituting a “search.”
Enforcement of Anti-Cultivation Laws
In the past ten years, law enforcement agencies throughout Florida have pursued an aggressive campaign to combat marijuana cultivation or manufacture in Florida. A key component of this enforcement effort is the Florida Domestic Marijuana Eradication Program.
The Florida Domestic Marijuana Eradication Program (DME) is the combined effort of the Florida Department of Law Enforcement (FDLE), the Federal Drug Enforcement Administration (DEA), the Florida Department of Agricultural Law Enforcement, and the Florida National Guard. According to the United State Drug Enforcement Agency, DME has resulted in the detection of over 24,000 grow sites in the State and the eradication of over 2 million marijuana plants. The value of these plants is in excess of $2.9 billion. The number of Florida cultivators arrested due to the efforts of this program are over 9,100.
Importance of an Attorney
As a result of Florida’s anti-cultivation policies, prosecutors have become increasingly aggressive in singling out marijuana cultivators for lengthy jail sentences and other draconian punishments. For this reason, an attorney is absolutely essential to help avoid or minimize the consequences of a cultivation conviction. If you have been accused of growing, cultivating, or manufacturing marijuana in Palm Beach County, Florida, contact attorney Steven Sessa for a free consultation.