Possession of Marijuana in Florida
It is a crime to possess any amount of marijuana in Florida and, depending on the amount, you can be charged with either a misdemeanor or a felony.
- Possession of less than 20 grams is a First Degree Misdemeanor, and
- Possession of more than 20 grams is a Third Degree Felony.
Importantly, cannabis concentrates, such as such as cannabis resin, cannabis wax, cannabis oil, hashish oil, cannabis budder, and cannabis crumble do not fall under the legal definition of cannabis in Florida and are prosecuted as a separate crime.
Penalties for Marijuana Possession
The penalties for marijuana possession depend on whether you are charged with possession of less than twenty grams of marijuana, which is considered misdemeanor possession, or possession of twenty grams or more of marijuana, which is considered felony possession.
Misdemeanor Penalties for Possession of Marijuana
If convicted of misdemeanor possession of marijuana, a judge can impose any combination of the following penalties:
- One year of probation,
- One year in jail, or
- A fine of up to a $1,000.
Felony Penalties for Possession of Marijuana
If convicted of felony possession of marijuana, a judge can impose any combination of the following penalties:
- Five years of probation,
- Five years in prison, or
- A fine of up to a $5,000.
Driver's License Suspension
Pursuant to Florida Statute 322.055, any person convicted of Possession of Cannabis will have their driver’s license or driving privilege revoked for one year by the Florida DHSMV.
Defenses to Marijuana Possession
- Constructive Possession
- Illegal Search and Seizure
- Lack of Knowledge
- Medical Necessity
- Overdose Defense
- Temporary 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 before you can be convicted of Possession of Marijuana: 
- Knowledge of the cannabis' presence;
- Dominion and control over the cannabis.
Below are scenarios where it can be argued the prosecutor could not meet their burden of proving constructive Possession of Marijuana.
Scenario 1: You were stopped while driving a friend's car and police found cannabis in the glove box, they would be unable to convict you of Possession of Marijuana unless they had some proof that you knew the cannabis was present.
Scenario 2: You were driving your car, had a friend with you, and your friend takes his personal stash of weed and places it at his feet. The police then stop you, see your friend's stash, and arrest both of you. They should be unable to convict you of Possession of Marijuana because even though you knew the marijuana was there, your friend is the only person who exercised dominion and control over it.
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 Possession of Marijuana if you can prove that you did not know the substance in your possession was cannabis. Importantly, this defense requires you to testify to your lack of knowledge of the substance's illegal nature. 
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. 
A person who is experiencing a drug-related overdose that needs medical assistance, or a person assisting the person that needs medical assistance, is immune from prosecution for Possession of Marijuana if it can be shown the evidence was obtained as a result of the overdose and need for medical assistance. 
The defense of temporary possession can be raised where a person takes momentary, temporary, or transitory possession of cannabis from the true owner. Under such circumstances, the person is not considered to be in legal possession of the cannabis because the person never exercised complete dominion and control over the cannabis. 
Examples of temporary possession are when a person is handed cannabis by the true owner and asked to hide it during a police encounter, such as a traffic stop; or when holding cannabis in the presence of a drug dealer for the sole purpose of verifying or testing the cannabis prior to purchasing it; or when passing the cannabis from the owner to a third person.
Contact Criminal Defense Lawyer Richard Hornsby
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