Marijuana – Cannabis – Grow House Defense

If you get arrested with 25 (it used to be 300 plants before July 1, 2008) or more cannabis plants, in Florida State court, that is evidence of intent to sell or distribute, a 2nd degree felony with a maximum penalty of 15 years prison and $10,000 fine. There are minimum mandatory prison sentences and fines depending on the amount of pot you are caught with.

For the purpose of this paragraph, a plant, including, but not limited to, a seedling or cutting, is a “cannabis plant” if it has some readily observable evidence of root formation, such as root hairs. To determine if a piece or part of a cannabis plant severed from the cannabis plant is itself a cannabis plant, the severed piece or part must have some readily observable evidence of root formation, such as root hairs. Callous tissue is not readily observable evidence of root formation. The viability and sex of a plant and the fact that the plant may or may not be a dead harvested plant are not relevant in determining if the plant is a “cannabis plant” or in the charging of an offense under this paragraph. Upon conviction, the court shall impose the longest term of imprisonment provided for in this paragraph.

 

Most grow house arrests result from:

A former “friend” ratted them out to reduce their own sentence.

The cops searched through their trash, commonly called a “trash pull.” You have no reasonable expectation of privacy in your trash. If the cops find baggies with shake, weed, seeds or paraphernalia in your trash, they may be able to get a search warrant.

Their electric bills were extremely high or they stole electricity from a neighbor

Misdemeanor Possession of Marijuana & Delivery of Marijuana

It is a crime in Florida to knowingly possess marijuana. The key in Florida State court is whether the pot weighs less than 20 grams. If it does, then the charge will be a first degree misdemeanor, punishable by up to one year in jail and a $1,000 fine and 2 year revocation of your driver’s license. Delivery of less than 20 grams carries the same penalty as simple possession. There are no guarantees as to any outcome. However, most misdemeanor possession of marijuana cases I handle end up being dropped. That means no conviction, you keep your license, and you may be able to get your case sealed or expunged.

Felony Possession of Marijuana

If the cannabis weighs more than 20 grams, you will probably be charged with felony possession of marijuana. The maximum you are facing is 5 years prison and a $5,000 fine on felony possession of marijuana, and a 2 year driver’s license suspension. However, when retained early, I always write the filing assistant state attorney a letter explaining the weaknesses of their case (if any) and why they should file misdemeanor charges or no charges at all. Possession of more than 30 grams of marijuana is a deportable offense.

Defenses to Marijuana Possession

A great criminal lawyer is your best defense to pot charges. Defenses include whether the cops violated your rights under the 4th, 5th and 6th amendments to the Constitution. Also, the pot may not have been found on your person. This is called constructive possession. Constructive possession cases are much harder for the State to prove beyond every reasonable doubt. There may be problems with the search warrant. Your statements might be suppressed if they were obtained in violation of your Miranda rights. You have the right to take the case to trial and make the State prove their case beyond a reasonable doubt. Many of my clients get their pot possession cases dismissed.

Possession with intent to sell Marijuana

The State of Florida sometimes charges possession with intent to sell marijuana if the pot is individually packaged. e.g., nickel bags, dime bags, etc. This is so even if the amount of cannabis is less than 20 grams. Other factors the State considers: whether they found a scale, accounting ledgers showing sales, etc.

Sale of Cannabis within 1,000 feet of a church, school, park

It is unlawful to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver cannabis (marijuana, pot, weed, whatever you want to call it) within 1,000 feet of a child care facility (day care), school, church, park, college, university, church, convenience store, or public housing. One of the most common drug sale crimes in Palm Beach county is sale within 1,000 feet of a church. The information, or charging document, will reclassify the sale to one level above what it normally would be. For instance, if the allegation was sale of marijuana, the charge would go from a third degree felony to a second degree felony. Third degree felonies are punishable by up to 5 years prison. Second degree felonies are punishable by up to 15 years prison.

Violation of Probation for testing positive for Marijuana

Ahhh the pee test. Did it come up dirty? Testing positive for pot is a very common allegation. If you are a light user, pot will show up on a urine test for up to 5 days. If you are a chronic smoker, pot may stay in your system about a month. You are entitled to a final violation of probation hearing for testing positive for pot. You are facing the maximum for whatever you were initially put on probation for. Violations of probation are much easier for the State to prove because the burden of proof is lower. The burden of proof is a preponderance of evidence, which means you probably violated your probation. This is much less than beyond a reasonable doubt, which is the standard in substantive criminal trials.

Asset Forfeiture of Property from Pot Charges

The Florida Contraband Forfeiture Act allows the government to seize your property in relation to pot charges. For instance, if they find even a joint in your car, they could seize your car and auction it off. You are entitled to notice and a hearing. Houses that are not protected by homestead in Florida may also be taken if you’re growing or selling weed out of the house.

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