Definition and Penalties
Under Section 893.13(1)(a), Florida Statutes, it is unlawful for a person “to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance,” such as cannabis or cocaine.
A violation of this section can be classified as a second or third degree felony, depending on the nature of the substance involved. Possession of cannabis (a Schedule 1 substance) with intent to sell, manufacture, or deliver is classified as third degree felony, while possession of cocaine (Schedule 2) with intent to sell is classified as a second degree felony. Thus, depending on the facts of the case, an accused may face a maximum penalty of five years imprisonment or fifteen years imprisonment.
To prove possession of a controlled substance with intent to sell, manufacture, or deliver, the prosecution must establish the following three elements beyond a reasonable doubt:
- The defendant possessed a certain substance with the intent to sell, manufacture, or deliver the substance;
- The substance was a controlled substance as defined in Section 893.03, Florida Statutes;
- The defendant had knowledge of the substance.
Under Florida drug possession statute, the term “sell” means to transfer or deliver something to another person in exchange for money or something of value, or a promise of money or something of value.
“Possession” means that the accused had personal charge of or exercised the right of ownership, management, or control over the thing possessed. For a more in-depth discussion of actual and constructive possession, visit our Possession of Cannabis web page.
Proving Possession With Intent to Sell
In most Florida drug possession cases, there is no actual intent to sell or deliver on part of the accused. The alleged “intent to sell” is often added to simple possession cases in order to “trump” up the charge, intimidate the accused, and extract a harsher plea.
If the prosecution insists on enhancement for possession with intent to sell, they can use any number of evidentiary factors to prove the charge, including:
- The presence of large amounts of cash in or around the premises or vehicle where the contraband was located;
- The presence of baggies and other packaging consistent with drugs and drug sales;
- The presence of other paraphernalia such as scales, rolling papers, balances, testing kits, and mixing devices;
- The presence of weapons;
- Admissions by the accused and those associated with the accused;
- The type and amount of controlled substances found;
Often, the factors cited by the prosecution as evidence of possession with intent to sell are consistent with personal use. Paraphernalia found on the premises may also serve a “dual use” purpose, which is consistent with legal activity. The prosecution may also find it difficult to prove that the accused himself was in possession of all the items that indicated an intent to sell.
Defenses to Possession With Intent to Sell
In many Florida prosecutions for Possession with Intent to Sell, Manufacture, or Deliver, there are strong factual defenses available to contest a charge. For this reason, an attorney can frequently negotiate with the State to amend the charge to simple possession. If the State cannot prove possession, the entire case will fail and will result in dismissal.
Even where no viable defenses exist, there may be grounds to challenge the legality of the underling police search or seizure. This is done through the filing of a Motion to Suppress. If granted, a Motion to Suppress may deprive the State of critical evidence needed to prove the case, and may result in a dismissal or dropping of the charge.
Contact an Attorney
If you have been accused of possession of a controlled substance with intent to sell, manufacture or deliver, you may have defenses available to contest the charge or to minimize potential penalties. contact attorney Steven Sessa for a free consultation.