Drug Trafficking
893.135: Trafficking, mandatory sentences; suspension or reduction of sentences; conspiracy to engage in trafficking:
Cannabis (the following represent "Trafficking in cannabis", all of which are First Degree Felony Charges):
Charge |
Mandatory Minimum Sentence |
|---|---|
In excess of 25 but less than 2,000 pounds or 300 or
ore cannabis plants |
3 Years + $25,000 fine |
2,000 pounds but less than 10,000 pounds or is 2,000 or more cannabis plants |
7 Years + $50,000 fine |
10,000 pounds or more or is 10,000 or more cannabis plants
|
15 Years + $200,000 fine
|
Cocaine (the following represent "Trafficking in cocaine", all of which are First Degree Felony Charges):
Charge |
Mandatory Minimum Sentence |
|---|---|
28
grams or more, but less than 200 grams |
3 Years + $25,000 fine |
200
grams or more, but less than 400 grams |
7 Years + $100,000 fine |
400
grams or more, but less than 150 kilograms |
15 Years + $250,000 fine |
Heroin (the following represent "Trafficking in heroin", all of which are First Degree Felony Charges):
Charge |
Mandatory Minimum Sentence |
|---|---|
4 grams or more, but less than 14 grams |
3 Years + $50,000 fine |
14 grams or more, but less than 28 grams |
15 Years + $100,000 fine |
28 grams or more, but less than 30 kilograms |
25 Years + $500,000 fine |
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In civil forfeiture, the government bears the burden of showing probable cause to believe that the property in question is subject to forfeiture. The burden then shifts to the claimant to show by a preponderance of the evidence either that the property is not subject to forfeiture or that an affirmative defense exists.
Proof for Seizure Warrants: Probable Cause
The government must have probable cause to believe that the property is subject to forfeiture; however, "unless a claimant challenges the validity of the seizure, as in a motion to suppress, the government is not called upon to demonstrate probable cause until trial of the forfeiture, or perhaps on a motion for summary judgment."
The courts apply the same standard for "probable cause" as found in Fourth Amendment jurisprudence; that is, the same standard required to conduct a search. The term "probable cause" has been defined as a reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." Whether probable cause exists is evaluated based upon a "totality of the circumstances" test. If more than one law enforcement official is involved in the seizure of property, "the existence of probable cause is to be evaluated on the basis of the collective information of the law enforcement officers engaged in a particular investigation."
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A seizure takes place as contemplated by the Fourth Amendment whenever a person's freedom of movement is terminated by an instrumentality put in place by law enforcement officers to terminate that freedom. It is a seizure even if the person stopped is not the one police intended to stop. Thus, a seizure occurred where police put a roadblock across both lanes of a highway. Clearly, the use of such techniques for various kinds of traffic enforcement that is tempting because it permits law enforcement to confront a large number of drivers in a relatively short period of time in an environment structured and controlled by police. It does, however, have a great potential for abuse. Such stops are made without probable cause or reasonable suspicion. Accordingly, officers cannot randomly stop drivers to check licenses and registrations, where there is "no empirical evidence" that such stops promotes highway safety.
Road blocks have been frequently been used for DUI investigations. Thus, in State v. Jones, the Florida Supreme Court established standards for this procedure. First, the roadblock must be established and operated according to detailed guidelines regarding the selection of vehicles, detention techniques, assignments and the disposition of vehicles so that little discretion is left to the officers conducting the road block.
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"Child" or "juvenile" or "youth" means any unmarried person under the age of 18 who has not been emancipated by order of the court and who has been found or alleged to be dependent, in need of services, or from a family in need of services; or any married or unmarried person who is charged with a violation of law occurring prior to the time that person reached the age of 18 years.
A child may be taken into custody under the following circumstances:
-
Pursuant to an order of the circuit court issued under this part, based upon sworn testimony, either before or after a petition is filed.
-
For a delinquent act or violation of law, pursuant to Florida law pertaining to a lawful arrest. If such delinquent act or violation of law would be a felony if committed by an adult or involves a crime of violence, the arresting authority shall immediately notify the district school superintendent, or the superintendent's designee, of the school district with educational jurisdiction of the child.
-
When a child is taken into custody as provided in this section, the person taking the child into shall attempt to notify the parent, guardian, or legal custodian of the child is notified or the child is delivered to a juvenile probation officer pursuant to S. 985.21, whichever occurs first.
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775.08: The term "felony" shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by death or imprisonment in a state penitentiary. "State penitentiary" shall include state correctional facilities. A person shall be imprisoned in the state penitentiary for each sentence which, except an extended term, exceeds 1 year.
Classification of Felonies |
Penalties |
|---|---|
Capital Felony |
Death |
Life Felony (committed after October 1, 1983) |
40
Years - Life |
| Felony of the First Degree | 30 Years |
Felony of the Second Degree |
15
Years |
| Felony of the Third Degree | 5 Years |
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775.08: The term "misdemeanor" shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by a term of imprisonment in a county correctional facility, except an extended term, not in excess of 1 year. The term "misdemeanor" shall not mean a conviction for any noncriminal traffic violation of any provision of Chapter 316 or any municipal or
county
ordinance.
Classification of Misdemeanors |
Penalties |
|---|---|
Misdemeanor of the First Degree |
Imprisonment
not exceeding 1 year + $1,000 fine |
Misdemeanor of the Second Degree |
Imprisonment
not exceeding 60 days + $500 fine |
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893.147: Use, possession, manufacture, delivery or advertisement of drug paraphernalia.
It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia.
To plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal a controlled substance in violation of this chapter; or
To inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.
Any person who violates this subsection is guilty of a Misdemeanor of the First Degree, punishable as provided in the "Misdemeanor" section above.
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893.149: Unlawful possession of listed chemical.
It is unlawful for any person to knowingly or intentionally:
Possess a listed chemical with the intent to unlawfully manufacture a controlled substance;
Possess or distribute a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to unlawfully manufacture a controlled substance;Any person who violates this section is guilty of a Felony of the Second Degree, punishable as provided in the "Felony" section above.
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893.13(6)(b): If the offense is the possession of not more than 20 grams of cannabis, the person commits a Misdemeanor of the First Degree.
Any person who violates this section is guilty of a Misdemeanor of the First Degree, punishable as provided in the "Misdemeanor" section above.
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Possession of Controlled Substance
893.13(6)(c): If the offense is possession in excess of 10 grams of any substance, the person commits a Felony of the First Degree.
Any person who violates this section is guilty of a Felony of the First Degree, punishable as provided in the "Felony" section above.
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316.193: Driving under the influence; penalties.
A person is guilty of the offense of driving under the influence and is subject to punishment as provided in the penalties section if the person is driving or in actual physical control of a vehicle within this state.
The person is under the influence of alcoholic beverages, any chemical substance set forth in s.877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired.
The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.
Penalties |
|
|---|---|
First
Conviction |
A fine of not less than $250 or more than $500 AND imprisonment of not more than 6 months |
Second
Conviction |
A fine of not less than $500 or more than $1,000 AND imprisonment of not more than 9 months |
Third
Conviction |
A fine of not less than $1,000 or more than $2,500 AND imprisonment of not more than 12 months AND is a Felony
|
Any person who is convicted of a third or subsequent violation of this section is guilty of a Felony of the Third Degree; the fine imposed for such third or subsequent violation may not be less than $1,000.
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741.28:
"Domestic Violence" means any assault, battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another who is or was residing in the same single dwelling unit.
"Family or Household Member" means spouses, former spouses, adults related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who have a child in common regardless of whether they have been married or have resided together at any time.
741.281: Court to order batterers' intervention program attendance.
If a person is found guilty of, has had adjudication withheld on, or has pled nolo contendere to a crime of domestic violence, as defined in s. 741.28, that person shall be ordered by the court to a minimum term of 1 year's probation and the court shall order that the defendant attend a batterers' intervention program as a condition or probation.
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948.06: Violation of probation or community control; revocation; modification; continuance, failure to pay restitution or cost of supervision.
Whenever within the period of probation or community control there are reasonable grounds to believe that a probationer or offender in community control has violated his or her probation or community control in a material respect, any law enforcement officer who is aware of the probationary or community control status of the probationer or offender in community control, any parole or probation supervisor may arrest or request any county or municipal law enforcement officer to arrest such probationer or offender without warrant wherever found and forthwith return him or her to the court granting such probation or community control
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Steven G. Casanova, P.A.
Attorney at Law
2323 South Babcock St.
Melbourne, Florida 32901
Phone: (321) 725-3700 | Telefax: (321) 725-3737
Email: steve@surferlaw.com
Note: The information contained in this Web site is intended to convey general information. It should not be construed as legal advice or opinion. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. Any email sent via the Internet using email addresses listed in this Web site would not be confidential and would not create an attorney-client relationship.
