Cultivation of Cannabis in Florida

Under Florida Statute 893.13(1)(A)(2), the crime of Cultivation of Cannabis is committed when a person grows or cultivates cannabis plants.

Personal Use Threshold

Pursuant to Florida Statute 893.1351(4), possession of less than 25 cannabis plants is assumed to be for personal use absent additional evidence to suggest it was intended for sale or distribution.

However, possession of 25 or more cannabis plants constitutes prima facie evidence that the cannabis is intended for sale or distribution of cannabis.

Penalties for Cultivation of Cannabis

In Florida, the crime of Cultivation of Cannabis is a Third Degree Felony punishable by up to five (5) years in prison, five (5) years of probation, and a $5,000 fine.

Cultivation of Cannabis is assigned a Level 3 offense severity ranking under Florida's Criminal Punishment Code and a judge may sentence a person convicted of Cultivation of Cannabis to probation, but may also impose a sentence up to the statutory maximum.

Driver's License Suspension

Pursuant to Florida Statute 322.055, any person convicted of Cultivation of Cannabis will have their driver’s license or driving privilege revoked for one year by the Florida DHSMV.

Defenses to Cultivation of Cannabis

In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, common defenses to the crime of Cultivation of Cannabis are:

Constructive Possession

If the cannabis was found in a place where more than one person had access, the prosecutor would have to comply with the law of constructive possession, which requires the prosecutor to prove the following two elements to convict a person of Cultivation of Cannabis: [1]

  1. Knowledge of the Cannabis' presence; and
  2. Dominion and control over the cannabis, which means more than the mere ability to reach out and touch the cannabis. [2]

Below are scenarios where it can be argued the prosecutor could not meet their burden of proving constructive Cultivation of Cannabis.

Scenario 1: You are living with a roommate who, unbeknownst to you, is growing multiple cannabis plants in his closet. Law enforcement find out about the plants, obtain a search warrant, search the house, find the cannabis plants, and arrest both you and your roommate. The prosecution should be unable to convict you of Cultivation of Cannabis because you were unaware that your roommate was cultivating cannabis in his closet.
Scenario 2: Your roommate is growing multiple cannabis plants in his closet. Law enforcement find out about the plants, obtain a search warrant, search the house, find the plants, and arrest both you and your roommate. The prosecution should be unable to convict you of Cultivation of Cannabis because, even though you may have known the cannabis was in your roommate's room, your roommate is the only person who exercised dominion and control over the plants.

Illegal Search and Seizure

More often than not, law enforcement exceed the scope of their authority and require people to submit to a vehicle, home, or body search; or they may coerce a person into agreeing to a search. If we can prove that either instance occurred, the courts will suppress the resulting evidence as having been illegally obtained.

Other suppression possibilities that may present themselves are: if law enforcement obtained a search warrant in bad faith or if you were arrested without probable cause.

Lack of Knowledge

It is an affirmative defense to the crime of Cultivation of Cannabis if you can prove that you did not know the plants you were growing were cannabis plants. Because knowledge is an affirmative defense, you would be required to testify a lack of knowledge of the substance's illegal nature. [3]

Medical Necessity

The defense of medical necessity can be used when a person suffers from a physical illness or ailment for which there was no lawful medication available to properly treat the illness or ailment and cannabis was the only substance that could relieve the pain or suffering of the person. [4]

Contact Criminal Defense Lawyer Richard Hornsby

If you have been charged with the crime of Cultivation of Cannabis in Central Florida or the Greater Orlando area, contact Criminal Defense Lawyer today.

The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.

References

  1. GG v. State, 84 So. 3d 1162 (Fla. 2nd DCA 2012)
  2. Smith v. State, 123 So. 3d 656, 658 (Fla. 2d DCA 2013)
  3. Florida Statute 893.101
  4. Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991)