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POSSESSION WITH THE INTENT TO SELL, MANUFACTURE OR DELIVER

Pursuant to Florida Statute 893.13(1)(a), 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.

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The classification of a felony for these charges depends upon the type of controlled substance, which the accused is charged with possessing.

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Possession of cannabis with intent to sell, manufacture, or deliver is classified as third-degree felony punishable by up to 5 years in Florida State Prison.

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Possession of cocaine with intent to sell, manufacture, or deliver is classified as a second-degree felony punishable by up to 15 years in Florida State Prison.

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Elements

For the State to prove the crime of Sell, manufacture or deliver a controlled substance or possession with the intent to sell, manufacture or deliver either cocaine or cannabis or any controlled substance, the State must prove the following elements beyond a reasonable doubt:

  1. The accused either:

    • sold

    • purchased

    • manufactured

    • delivered

    • possessed with intent to sell

    • possessed with intent to purchase

    • possessed with intent to manufacture

    • possessed with intent to deliver

    • a certain substance.

  2. The substance was a controlled substance

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If the defendant was charged with possession with intent to sell, manufacture or deliver the state must also prove that:

The accused had knowledge of the presence of the substance.

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“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.

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“Manufacture” means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly.  Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis.  It can also be by a combination of extraction and chemical synthesis.

“Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

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For a detailed explanation of possession and the various defenses to the element of possession, read Defenses to a Drug Charge.

What does “Intent to Sell” really mean?  

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In most possession with intent cases, there is no actual evidence of intent to sell on part of the accused but rather the belief of the officers and the prosecutors.  In many cases, the prosecutors will raise the charge from simple possession to possession with intent in an effort to intimidate the accused with a more severe charge.


In many cases, the prosecution will charge possession with intent when they have evidence of:

  • The presence of large amounts (sometime even small amounts) of cash in or around the premises or vehicle where the drugs were found;

  • The presence of baggies and other packaging consistent with drugs and drug sales;
    The presence of other scales;

  • The presence of weapons even if you have a license for the weapon;

  • The way that the drugs were packages (i.e. the drugs were found in numerous bags)

  • The amount of drugs found

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These are just a few of the ways that the prosecutors try to show that the accused had the intent to sell the drugs and that the drugs were not for personal use.

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There are many different ways to attack a charge of Possession with Intent to Sell.

In Alleyne v. State, 42 So.3d 948 (4th DCA 2010), the defendant was arrested with 18 baggies of marijuana.  He was, charged with and convicted of possession with intent to sell or deliver.  The officers testified in court that the 18 baggies of marijuana were “packaged” in a way consistent with drug dealing. On appeal, the Fourth District Court of Appeal overturned the conviction holding that law enforcement “never saw Alleyne engaged in selling marijuana and had no personal knowledge that he had ever done so.” Id. at 949.  Based upon the courts holding, having drugs packaged in separate baggies is not sufficient to prove intent to sell.

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For a more information of Sale, manufacture or Delivery of Possession with the intent to sell, manufacture or deliver drugs, please contact Fort Lauderdale Criminal Defense Lawyer David J. Sobel at 954-383-3000.

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