Eric J. Dirga, P.A.

A Florida Trial Attorney

Criminal Record Expungements/Sealings, Traffic Defense.

733 West Colonial Drive, Orlando 32801 - 407-841-5555

Jury Instructions For Possession With Intent

Sell, Purchase, Manufacture, or Deliver, or Poseesion With Intent

Possession With The Intent; More Than Personal Us; Florida Jury Instructions

Last Updated: May 27, 2016

This jury instructions covers the offenses of either (1) sale, (2) purchase, (3) manufacturing, or (4) delivery of a controlled substance. Additionally, possession of a controlled substance with the intent to commit any of those activities is also covered. NOTE: A person found guilty of manuafacturing a controlled substance is not eligible to have his or her record sealed.


Note:

Possession with intent to sell, purchase, manufacture, or deliver is a felony offense. Technically, a person who shares a prescribed pain medication with a friend whose back is hurting is violating this law. However, most people charged with this offense have been arrested by undercover agents either posing as people seeking to buy or sell drugs or by a confidential informant working with law enforcement.

Other examples include people who receive packaged drugs through a delivery service (e.g., UPS, Fed Ex) and people arriving at the airport carrying drugs on them. Depending on the amount of drugs possessed by the person the charge of trafficking in drugs could be brought (see Florida's Drug Trafficking Statute).

This is a serious offense. Those accused of this crime should seek counsel with a criminal defense attorney. Prosecutors need to be aware of the many nuances found in the case law regarding this crime for a successful prosecution.


25.2 SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT TO SELL, PURCHASE, MANUFACTURE, OR DELIVER

§ 893.13(1)(a) and (2)(a), 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 (crime charged), the State must prove the following (applicable number) elements beyond a reasonable doubt:

1. (Defendant) [sold] [manufactured] [delivered] [purchased] [possessed with intent to [sell] [manufacture] [deliver] [purchase]] a certain substance.

2. The substance was (specific substance alleged).

Give if possession is charged.

3. (Defendant) had knowledge of the presence of the substance.

Delivery of 20 Grams or Less of Cannabis without consideration is a misdemeanor. See § 893.13(3), Fla. Stat. If the State charges the felony of Delivery of More Than 20 Grams of Cannabis, the jury must make a finding as to the weight.

3. or 4. The cannabis weighed more than 20 grams.

Definitions. Give as applicable.

Cannabis. §§§ 893.02(3); 893.13(3); 893.13(6)(b), Fla. Stats.

Cannabis means all parts of any plant of the genus Cannabis, whether growing or not and the seeds thereof.

Sell.

“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.

Manufacture. § 893.02(13)(a), Fla. Stat.

“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. § 893.02(5), Fla. Stat.

“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.

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 the 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.

Give if applicable. See, McMillon v. State, 813 So. 2d 56 (Fla. 2002).

You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

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. See, 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.

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 (crime charged). (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 controlled 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 (crime charged).

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 (crime charged).

Lesser Included Offenses

SALE, PURCHASE, MANUFACTURE, DELIVERY OR POSSESSION WITH INTENT— 893.13(1)(a) and (2)(a)
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
Possession of a Controlled Substance, if Possession With Intent is charged - 893.13(6) 25.7
Delivery of 20 Grams or Less of Cannabis if Delivery of More than 20 Grams of Cannabis is charged - 893.13(3) 25.2
Attempt, except when delivery is charged - 777.04(1) 5.1

Comment

If the State alleges the defendant possessed cannabis, in an amount more than 20 grams, with intent to sell, purchase, deliver, or manufacture the cannabis, there will be both a felony necessary lesser-included offense of simple possession and a misdemeanor lesser-included offense of simple possession. See 893.13(6)(b), Fla. Stat.

If the State alleges the defendant possessed a controlled substance listed in § 893.03(1)(c)46.-50., 114.-142., 151.-159, or 166.-169., in an amount more than 3 grams, there will be both a felony necessary lesser-included offense of simple possession and a misdemeanor necessary lesser-included offense of simple possession. See § 893.13(6)(b).

There is no crime of Attempted Delivery because the definition of “delivery” in § 893.03(6) Fla. Stat. includes the attempt to transfer from one person to another.

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.



Corrections/Errors; Questions

The purpose of publishing this information is to help both prosecutors and defense attorneys, and non-lawyers better understand the criminal justice system in Florida. We appreciate any input that may further this goal.

Found an error or want to suggest a correction for this page? Please inform us by emailing us at Corrections And Errors.

If you have a question about representation on a criminal case you can email us at Question About Representation.

If you want to suggest a new or old case that we have not listed on this website please submit the complete bluebook case citation to Suggest Case Law.


If you found any information I have provided on this webpage helpful please click my Plus+1 button so that others may also find it.

Contact Us - Click Here