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Florida Jury Instructions For Possession Of Drugs

Possession; Definitions; Inferences; Affirmative Defenses

From Simple Possession Of Cannabis through Life Felony Possessions

Last Updated: May 27, 2016

Jury Instructions are the heart of any criminal case. This is exactly what the prosecutor must prove and he or she builds their case upon them. The Defense uses the Jury Instructions to find its defenses and where the state's case is weak. Non-lawyers and those accused should know what the jury will be told that the law is and to be followed. They are read verbatim the jury instructions. See, American Bar Association, Jury Instructions.


25.7 POSSESSION OF A CONTROLLED SUBSTANCE


§ 893.13(6), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) is a controlled substance.

To prove the crime of Possession of a Controlled Substance, the State must prove the following [three] [four] elements beyond a reasonable doubt:

1. (Defendant) knew of the presence of a substance.

2. (Defendant) exercised control or ownership over that substance.

3. The substance was (specific substance alleged).


§ 893.13(6)(b) Fla. Stat.

The jury must make a finding as to weight if the defendant is charged with possessing more than 20 grams of cannabis or more than 3 grams of a substance listed in § 893.03(1)(c)46-50, 114-142, 151-159, or 166-169 Fla. Stat.

4. The [cannabis weighed more than 20 grams] [(insert name of substance listed in 893.03(1)(c)46-50, 114-142, 151-159, or 166-169) weighed more than three grams].


§ 893.13(6)(c) Fla. Stat.

The jury must make a finding as to weight if the defendant is charged with violating § 893.13(6)(c) Fla. Stat.

4. The [(insert name of substance listed in 893.03(1)(a) or 893.03(1)(b)] [combination of (insert names of substances listed in 893.03(1)(a) or 893.03(1)(b)] [mixture containing (insert name of substance listed in 893.03(1)(a) or 893.03(1)(b)] weighed more than 10 grams.


Definitions.

Give if applicable. Cannabis. § § 893.02(3), 893.13(6)(b) Fla. Stat.

Cannabis means all parts of any plant of the genus Cannabis, whether growing or not, and the seeds thereof [but does not include any resin extracted from the plant].

Possession.

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the substance is in a place over which the person has control, and the person has the ability to control the substance.

Give if applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant’s) constructive possession of a substance that was in a place [he] [she] did not control, the State must prove (defendant) (1) knew that the substance was within [his] [her] presence and (2) exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of a substance and may jointly exercise control over it. In that case, each of those persons is considered to be in possession of the substance.


Inferences.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the ability to control it.

If (defendant) did not have exclusive control over the place where a substance was located, you may not infer [he] [[she] had knowledge of the presence of the substance or the ability to control it, in the absence of other incriminating evidence.

Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

However, you may infer that (defendant) knew of the presence of the substance and had the ability to control it if [he] [she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

Lack of Illicit Nature of Drug

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is a defense to the crime of Possession of a Controlled Substance. (Defendant) has raised this defense.

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership over the substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of Possession of a Controlled Substance.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of Possession of a Controlled Substance.


Lesser Included Offenses

POSSESSION OF A CONTROLLED SUBSTANCE – 893.13(6)
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
Possession of Less than 20 Grams of Cannabis or Possession of Less than 3 Grams of a Substance listed in 893.03(1)(c)46-50, 114-142, 151-159, or 166-169, if the felony level of these substances is charged - 893.13(6)(b) 25.7
Attempt - 777.04(1) 5.1

Comment

Fla. Stat. §893.21

A person acting in good faith who seeks medical assistance for an individual experiencing a drug-related overdose may not be prosecuted for Possession of a Controlled Substance if the evidence of the possession was obtained as a result of the person’s seeking medical assistance.

A special instruction is necessary when the defense is a mere involuntary or superficial possession. See cases such as Hamilton v. State, 732 So. 2d 493 (Fla. 2d DCA 1999) and Sanders v. State, 563 So. 2d 781 (Fla. 1st DCA 1990).

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], and 2014.



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