Florida/Georgia Personal Injury & Workers Compensation

...in a dangerous situation was required to temporarily postpone the execution of a search warrant as the defendant had become a physical distraction by shouting 10 Wilkerson was also searched and arrested for: (1) possession of crack cocaine, in violation of section 893.13(1)(f); (2) possession of cannabis, in violation of section 893.13(1)(g); (3) possession of illicit drug paraphernalia, in violation of section 893.147; and (4) obstruction of a law officer in the execution of his legal duties. 11 louder and more profanely as a large crowd gathered....

...I. BACKGROUND Arias was lawfully admitted to the United States for permanent residence on August 17, 1973. On May 13, 1988, Arias pled guilty to and was convicted of two counts of sale of cocaine, in violation of section 893.13(1)(a), Florida Statutes. On May 12, 2003, upon returning from traveling abroad, Arias applied for admission to the United States as a returning lawful permanent resident and was paroled into the United States....

...nature. Note to Judge It is the committee's opinion that F.S. 849.25(1)(c) is for the judge and not the jury. Therefore (1)(c) should not be read to the jury. EXHIBIT 8 DRUG ABUSE — SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT F.S. 893.13(1)(a) Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance....

...cle. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. Notes to Judge 1. Note F.S. 893.13(1)(f)(g) if the charge involves possession or delivery without consideration of not more than 20 grams of cannabis....

...If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See State v. Medlin, 273 So.2d 394 (Fla. 1973). DRUG ABUSE — SALE, PURCHASE, DELIVERY OR POSSESSION IN EXCESS OF TEN GRAMS F.S. 893.13(1)(b) Note to Judge This instruction will have to be altered if a combination of substances is alleged....

...inferred or assumed. Note to Judge If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See State v. Medlin, 273 So.2d 394 (Fla. 1973). DRUG ABUSE — DELIVERY TO A MINOR F.S. 893.13(1)(C) Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance....

..."Deliver" or "delivery" means the actual, 893.02(4)(5) constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. NEW INSTRUCTION DRUG ABUSE — POSSESSION ON OR NEAR SCHOOL F.S. 893.13(1)(e) Before you can find the defendant guilty of (crime charged) the State must prove the following three elements beyond a reasonable doubt: Elements 1....

...y not be inferred or assumed. Note to Judge If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See State v. Medlin, 273 So.2d 394 (Fla. 1973). DRUG ABUSE — POSSESSION F.S. 893.13(1)(e)(f) Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance....

...If a person does not have exclusive possession of a thing, knowledge of its presence may be inferred or assumed. Note to Judge 1. If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See State v. Medlin, 273 So.2d 394 (Fla. 1973). 2. Note F.S. 893.13(1)(f)(g) if the charge involves possession or delivery without consideration of not more than 20 grams of cannabis. TRAFFICKING IN CANNABIS F.S. 893.135(1)(a) Certain drugs and chemical substances are by law known as "controlled substances." Cannabis is a controlled substance....

...(Defendant) knowingly [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] a certain substance 2. The substance was cannabis. 3. The quantity of the cannabis involved was in excess of 100 pounds. Note to Judge If applicable, the judge should instruct the jury on F.S. 893.135(2)....

...[The quantity of the substance involved was in excess of 100 pounds but less than 2,000 pounds.] b. [The quantity of the substance involved was 2,000 pounds or more but less than 10,000 pounds.] c. [The quantity of the substance involved was 10,000 pounds or more.] TRAFFICKING IN COCAINE F.S. 893.135(1)(b) Certain drugs and chemical substances are by law known as "controlled substances." Cocaine or any mixture containing cocaine is a controlled substance....

...(Defendant) knowingly [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] a certain substance 2. The substance was [cocaine] [a mixture containing cocaine]. 3. The quantity of the substance involved was 28 grams or more. Note to Judge If applicable, the judge should instruct the jury on F.S. 893.135(2)....

...[The quantity of the substance involved was in excess of 28 grams but less than 200 grams.] b. [The quantity of the substance involved was 200 grams or more but less than 400 grams.] c. [The quantity of the substance involved was 400 grams or more.] TRAFFICKING IN ILLEGAL DRUGS F.S. 893.135(1)(c) Certain drugs and chemical substances are by law known as "controlled substances." (specific substance alleged) is a controlled substance....

...nce *1224 2. The substance was [specific substance alleged).] [a mixture containing (specific substance alleged)]. 3. The quantity of the substance involved was four grams or more. Note to Judge If applicable, the judge should instruct the jury on F.S. 893.135(2)....

...involved was in excess of 4 grams but less than 14 grams.] b.[The quantity of the substance involved was 14 grams or more but less than 28 grams.] c.[The quantity of the substance involved was 28 grams or more.] *1225 TRAFFICKING IN PHENCYCLIDINE F.S. 893.135(1)(d) Certain drugs and chemical substances are by law known as "controlled substances." Phencyclidine or any mixture containing phencyclidine is a controlled substance....

...rida] [possessed] a certain substance 2. The substance was [phencyclidine] [a mixture containing phencyclidine]. 3. The quantity of the phencyclidine involved was 28 grams or more. Note to Judge If applicable, the judge should instruct the jury on F.S. 893.135(2)....

...[The quantity of the substance involved was in excess of 28 grams but less than 200 grams.] b. [The quantity of the substance involved was 200 grams or more but less than 400 grams.] c. [The quantity of the substance involved was 400 grams or more.] TRAFFICKING IN METHAQUALONE F.S. 893.135(1)(e) Certain drugs and chemical substances are by law known as "controlled substances." Methaqualone or any mixture containing methaqualone is a controlled substance....

...lorida] [possessed] a certain substance 2. The substance was [methaqualone] [a mixture containing methaqualone]. 3. The quantity of the methaqualone involved was 200 grams or more. Note to Judge If applicable, the judge should instruct the jury on F.S. 893.135(2)....

...c)1 injury — 316.193(3)(c)2 DUI manslaughter DUI — 316.193(1) Vehicular homicide — — 316.193(3)(c)3 782.071 DUI — 316.193(3)(c)2 DUI — 316.193(3)(c)1 Sale, manufacture, None Attempt, except when delivery or delivery is charged; possession with 893.13(1)(f)(g) if intent to sell, possession or delivery of manufacture or cannabis charged deliver controlled 893.13(1)(e)(f) if substance — possession is 893.13(1)(a) charged [********] Sale, delivery or None Attempt, except when possession of more delivery is charged than 10 grams of 893.13(1)(a) controlled substance 893.13(1)(e)(f) if — 893.13(1)(b) possession is charged Delivery of controlled None 893.13(1)(a) substance to person 893.13(1)(f)(g) under 18 years old if cannabis charged — 893.13(1)(c) Bringing controlled None Attempt 893.13(1)(e)(f) substance into state 893.13(1)(f)(g) if — 893.13(1)(d) cannabis charged Possession of None Attempt; 893.13(1)(f)(g) if controlled substance cannabis charged — 893.13(1)(e)(f) Offense of possession None Attempt, except when or delivery of not delivery is charged more *1241 than 20 grams of cannabis — 893.13(1)(f)(g) Obtaining controlled None substances by fraud — 893.13(3)(a)1 Possession of drug None Attempt paraphernalia — 893.147(1) Delivery, possession None Attempt, except when with intent to delivery is charged deliver, or manufacture with intent to deliver drug paraphernalia — 893.147(2) Delivery of drug None None paraphernalia to a minor — 893.147(3) Trafficking in cannabis — 893.135(1)(a) None [*********] Attempt, except when delivery is charged 893.13(1)(a) if sale, manufacture or delivery is charged Bringing cannabis into state — 893.13(1)(d) Possession of cannabis — 893.13(1)(e)(f) Possession or delivery of cannabis — 893.13(1)(f)(g) Trafficking in cocaine None [*********] Attempt, except when — 893.135(1)(b) delivery is charged 893.13(1)(a) if sale, manufacture or delivery is charged Bringing cocaine into state — 893.13(1)(d) Possession of cocaine — 893.13(1)(e)(f) Trafficking in illegal None [*********] Attempt, except when drugs — 893.135(1)(c) delivery is charged 893.13(1)(a) if sale, manufacture or delivery is charged Bringing same illegal drug as charged into state — 893.13(1)(d) Possession of same illegal drug — 893.13(1)(e)(f) Trafficking in None [*********] Attempt, except when phencyclidine delivery is charged — 893.135(1)(d) 893.13(1)(a) if sale, manufacture or delivery is charged Bringing phencyclidine into state — 893.13(1)(d) Possession of phencyclidine — 893.13(1)(e)(f) Trafficking in None [*********] Attempt, except when methaqualone delivery is charged — 893.135(1)(d) *1242 893.13(1)(a) if sale, manufacture or delivery is charged Bringing methaqualone into state — 893.13(1)(d) Possession of methaqualone — 893.13(1)(e)(f) Contraband — 951.22 None The nature of the contraband may give rise to misdemeanor, lesser included offenses See Cooper v....

...4th DCA 1976), and Murray v. State, 328 So.2d 501 (Fla. 4th DCA 1976). [******] See Taylor v. State, 444 So.2d 931 (Fla. 1984). [*******] But see Martin v. State, 342 So.2d 501 (Fla. 1977). [********] Provided that charged offense is a second degree felony under section 893.13(1)(a)1....

...pinion. • § 27.56, Fla. Stat. (1991). The public defender fees may be taxable as a cost. These costs are case-specific and require compliance with the notice procedures for discretionary costs. Farmer v. State, 617 So.2d 447 (Fla. 2d DCA 1993). • § 893.13(4), .16, .165, Fla. Stat. (1991). As discussed in section VI of this opinion, the trial court is authorized to impose costs for certain drug treatment and education funds in cases involving offenses under chapter 893 and related statutes. Section 893.13(4) states that the court "may" assess these costs. The costs are directed to at least two different trust funds in subsection 893.13(4)(a) and 893.13(4)(b)....

...If Hillsborough County wishes to create such a court improvement program, it will need the authorization of the legislature. VI. THE HILLSBOROUGH COUNTY DRUG ABUSE TRUST FUND This fund stands on better footing than does the court improvement fund. Section 893.13(4)(a), Florida Statutes (1991), authorizes the trial court to impose an additional assessment up to the amount of the relevant fine in a drug case....

...The defendant did not object to this cost when given the opportunity. Unfortunately, the local form cost order used in this case does not contain a statutory citation for this cost. We note that the form cost order in rule 3.986(c) also has no standardized language for assessments under section 893.13(4)(a)....

...s (1991), are paid into a special county trust fund, except for a small service charge retained by the clerk. The mandatory cost collected pursuant to section 960.20 goes to the Crimes Compensation Trust Fund. The discretionary costs collected under section 893.13(4) go to numerous county trust funds and to the Operating Trust Fund of the Department of Law Enforcement....

...1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983); and Wale v. State, 397 So.2d 738, 739 (Fla. 4th DCA 1981). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We hold that guilty knowledge is an element of possession of a controlled substance under section 893.13(1)(f), Florida Statutes (1991), and possession of drug paraphernalia under section 893.147(1), Florida Statutes (1995)....

...expressly require mens rea or scienter made unknowing possession a criminal offense. This is not correct. Knowledge of possession is generally considered a part of the definition of possession as used in criminal statutes making possession a crime. Section 893.13, Florida Statutes (1981), prohibiting the actual or constructive possession of a controlled substance, and its predecessors, have never specifically required "knowing" possession, yet possession has always been defined to include knowledge of the same....

...We agree with this view and, consistent therewith, conclude that the criminal statutes at issue before us today are more akin to offenses that presume a scienter requirement in the absence of express contrary intent. [10] The penalties imposed *743 for violating sections 893.13(6)(a) and 893.147(1) are incongruous with crimes that require no mens rea....

...Hence, the State's position really supports our holding and we commend the State for its forthright approach and candor. Sufficiency of the Information Although by statutory construction we find that guilty knowledge is an element of the crimes defined in sections 893.13(6)(a) and 893.147(1), we hold that the trial court did not err in denying petitioner's motion to dismiss the information....

...[14] We hold that the defendant was entitled to a more specific instruction as requested here. CONCLUSION We quash Chicone v. State, 658 So.2d 1007 (Fla. 5th DCA 1994), because it held that the State did not have to prove that Chicone knew of the illicit nature of the items he possessed under sections 893.13(6)(a) and 893.147(1), Florida Statutes (1993), and find that it was error for the trial court to deny Chicone's request for a special jury instruction on knowledge. We remand for further proceedings consistent with this opinion. It is so ordered. KOGAN, C.J., and OVERTON, SHAW, GRIMES and HARDING, JJ., concur. WELLS, J., recused. NOTES [1] § 893.13(1)(f), Fla. Stat. (1991) (now codified at section 893.13(6)(a), Florida Statutes (1995)): It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid presc...

...tive. However, we find this not dispositive. All crimes of possession may be actual or constructive. See, e.g., Fla. Std. Jury Instr. (Crim.) 245. Case law interpreting the meaning of actual or constructive possession of a controlled substance under section 893.13(1)(f) is equally applicable to section 893.147....

...4th DCA 1992) (Farmer, J., dissenting), approved in part, quashed in part, 626 So.2d 1364 (Fla.1993). The legislature, by inserting the word "knowingly," expressly included guilty knowledge as a core ingredient in the drug trafficking offenses. Id. at 114; see § 893.135, Fla....

...He was held in jail for about five hours. When he was released at the end of the day, Dr. Nguyen still did not know why he had been arrested. Dr. Nguyen later learned that he had been arrested for six counts of delivery of a controlled substance in violation of Fla. Stat. § 893.13(1)(a), which makes it a crime to deliver a controlled substance “[e]xcept as authorized by this chapter.” That chapter of the Florida Code authorizes medical doctors to dispense or prescribe controlled substances “in good faith and in the course of his or her professional practice only.” Fla....

...Nguyen had delivered Lortab and Valium, which contain the controlled substances hydrocodone and diazepam, “to a confidential source by use of a written order for said drug[s] not issued in good faith and in the course of his professional practice, contrary to section 893.13(1)(a)(2).” The not in good faith and not in medical practice elements were more specifically described in the affidavit underlying the warrant....

...We find the 1989 amendment changing the language of section 790.221(2) to be a clear and unambiguous expression of the legislature's intent. McKendry argues that Scates v. State, 603 So.2d 504 (Fla. 1992), should control in the instant case. In Scates, the defendant was convicted under section 893.13(1)(e)(1), Florida Statutes (1989), of purchasing cocaine within 1000 feet of a school. Section 893.13(1)(e)(1) provides for a minimum term of imprisonment of three years....

...litation pursuant to section 397.12, Florida Statutes (1989). This Court held that trial judges may order a defendant to participate in a drug rehabilitation program pursuant to section 397.12 rather than impose the three-year minimum sentence under 893.13(1)(e)(1). The State argues that Scates may be distinguished from the case before us. We agree. The statutes in Scates, section 397.12 and section 893.13(1)(e)(1), were both designed to combat drug abuse, and section 397.12 specifically refers to chapter 893....

...Section 790.221 was enacted in part specifically to address the crime of possession of a short-barreled shotgun. On the other hand, section 948.01 was created to generally address the trial court's authority to grant leniency in any criminal sentencing. Furthermore, section 893.13(1)(e)(1) did not expressly refer to its sentence as "mandatory," thereby implying that the legislature intended to allow trial judges greater discretion in sentencing....

...For the reasons expressed in our recent opinion in Scott v. State, 808 So.2d 166 (Fla.2002), we quash the decision under review and direct that petitioner's conviction for the sale of cocaine be reversed. Terry McMillon (McMillon) was convicted of selling cocaine to an undercover officer pursuant to section 893.13(1)(a)1, Florida Statutes (1997)....

...Moreover, this decision clarifies that the majority has converted Chicone [4] error into per se reversible error. This could only be the situation if the Chicone decision is considered to have written an element into the crime. Writing of elements into crimes is for the Legislature—not this Court. NOTES [1] Section 893.13(1)(a)1 states: Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance....

...court for further proceedings. Patrick Weller was arrested in an undercover drug investigation and charged with two offenses. First, he was accused of committing the first-degree felony of trafficking in 400 grams or more of cocaine in violation of section 893.135(1)(b)(3), Florida Statutes (1983). This offense carries a minimum mandatory sentence of fifteen calendar years and a fine of $250,000. Id. Second, he was charged with the separate first-degree felony of conspiracy to traffic in 400 grams or more of cocaine in violation of section 893.135(4), Florida Statutes (1983) — a crime that also carries a fifteen-year minimum mandatory sentence and a fine of $250,000....

...At the close of the State's case, Weller moved for judgments of acquittal on both the trafficking and conspiracy counts. These motions were denied. On the conspiracy count, Weller requested three jury instructions on the following: (1) the third-degree felony of conspiracy to deliver cocaine, see §§ 893.13(1)(a), 777.04(3), Fla. Stat. (1983); (2) the first-degree felony of conspiracy to traffic in cocaine in amounts less than 400 grams but more than 200 grams (which carries a minimum mandatory sentence of five calendar years and a fine of $100,000), see § 893.135(1)(b)(2), Fla. Stat. (1983); and (3) the first-degree felony of conspiracy to traffic in cocaine in amounts less than 200 grams but more than twenty-eight grams (which carries a minimum mandatory sentence of three calendar years and a fine of $50,000). [1] See § 893.135(1)(b)(1), Fla....

...As we stated in Rotenberry, one offense can be committed without necessarily committing the other. Rotenberry, 468 So.2d at 976. However, this does not dispose of the issue. In the case at bar, Count II of the information indicates Weller specifically was charged with conspiracy to deliver cocaine under section 893.13(1)(a)(1): CARLOS GIRARDO GOMEZ and PATRICK DAVID WELLER ......

...minal offense, to-wit: Trafficking in Cocaine, ... in that the said Carlos Girardo Gomez and Patrick David Weller did conspire, combine, agree, or confederate to deliver Cocaine ... in an amount of four hundred (400) grams or more, ... contrary to F.S. 893.135(4), F.S. 893.135(1)(b)(3), F.S. 893.03(2)(a)(4) and F.S. 893.13(1)(a)(1)....

...minimum penalties, despite their shared status as first-degree felonies. As noted earlier, Florida law provides for a greater mandatory minimum sentence and a greater fine, determined by the quantity of the substance involved in the offense. Compare § 893.135(1)(b) with § 893.135(4), Fla....

...Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 5 calendar years and to pay a fine of $100,000. 3. Is 400 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and to pay a fine of $250,000. § 893.135(1)(b), Fla....

...NOTES [1] The charges contained in the notice to show cause alleged the following: 1. That you, Melvin Heifetz, d/b/a Key Wester Inn, licensed under the beverage laws, by and through your agent, servant or employee, Lori Ann Hart, did violate Florida Statute 561.29(1)(a) and Florida Statute 893.13(1)(a) by the felony sale and/or delivery of cocaine on the following occasions: a....

...On or about September 17, 1983, sale of cocaine to Beverage Officer Delmonte while on the licensed premises. 2. That you, Melvin Heifetz, d/b/a Key Wester Inn, licensed under the beverage laws, by and through your agent, servant or employee, Linda, did violate Florida Statute 561.29(1)(a) and Florida Statute 893.13(1)(a) by the felony sale and/or delivery of cocaine on the following occasions: a....

...emises as a place resorted to by persons using controlled substances in violation of Chapter 893, F.S. or for the purpose of using said substances or which is used for keeping or selling the same in violation of Chapter 893, F.S. and Florida Statute 893.13(2)(a)5....

...The instructions as set forth in the appendix shall be effective when this opinion becomes final. It is so ordered. LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur. APPENDIX 25.2 DRUG ABUSE — SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT § 893.13(1)(a) and(2)(a), Fla....

...) not guilty. Lesser Included Offenses ------------------------------------------------------------------------------------------ SALE, PURCHASE, MANUFACTURE, DELIVERY OR POSSESSION WITH INTENT TO SELL, MANUFACTURE OR DELIVER CONTROLLED SUBSTANCE — 893.13(1)(a) and (2)(a) ------------------------------------------------------------------------------------------ CATEGORY ONE CATEGORY TWO FLA....

...-------------------------------------------------------------------------- *265 Attempt, except when delivery is charged 777.04(1) 5.1 ------------------------------------------------------------------------------- If delivery of cannabis is charged 893.13(3) -------------------------------------------------------------------------------- If possession of cannabis is charged 893.13(6)(b) ---------------------------------------------------------------------------------- If possession is charged and offense would be a second degree felony under 893.13(1)(a)1 893.13(6)(a) ---------------------------------------------------------------------------------- Comment Note §§ 893.13(1)(g) 893.13(3) and 893.13(6)(b), Fla....

...Medlin, 273 So.2d 394 (Fla.1973). This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], and 1997 [697 So.2d 84], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004)]. *250 25.3 DRUG ABUSE — SALE, PURCHASE, DELIVERY, OR POSSESSION IN EXCESS OF TEN GRAMS § 893.13(1)(b), (2)(b), and (6)(c), Fla....

...led substance, you should find (defendant) not guilty. Lesser Included Offenses ----------------------------------------------------------------------------- SALE, OR PURCHASE, DELIVERY, OR POSSESSION OF MORE THAN 10 GRAMS OF CONTROLLED SUBSTANCE — 893.13(1)(b), (2)(b), and (6)(c) ---------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ----------------------------------------------------------------------------- Sale or delivery of controlled substance 893.13(1)(a) 25.2 ----------------------------------------------------------------------------- Attempt, except when delivery is charged 777.04(1) 5.1 ----------------------------------------------------------------------------- If possession is charged 893.13(6)(a) ----------------------------------------------------------------------------- Comment If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required....

...See State v. Medlin, 273 So.2d 394 (Fla.1973). This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], and 1997 [697 So.2d 84], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004)]. 25.4 DRUG ABUSE — DELIVERY TO OR USE OF MINOR § 893.13(4), Fla....

...If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty. Lesser Included Offenses ------------------------------------------------------------------------------------ DELIVERY TO OR USE OF A MINOR — 893.13(4) ------------------------------------------------------------------------------------ CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ------------------------------------------------------------------------------------ Sale, manufacture, delivery, etc. 893.13(1)(a) 25.2 ------------------------------------------------------------------------------------ Attempt, except when delivery is charged 777.04(1) 5.1 ------------------------------------------------------------------------------------ If possession is charged and the offense would be a second degree felony under 893.13(1)(a)1 893.13(6)(a) ------------------------------------------------------------------------------------ If possession of cannabis is charged 893.13(6)(b) ------------------------------------------------------------------------------------ If delivery of cannabis is charged 893.13(3) ------------------------------------------------------------------------------------ *253 Comment This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004)]. 25.5 DRUG ABUSE — BRINGING INTO STATE § 893.13(5), Fla....

...If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty. Lesser Included Offenses -------------------------------------------------------------------------------- BRINGING INTO STATE — 893.13(5) -------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. -------------------------------------------------------------------------------- Sale, manufacture, delivery, etc. 893.13(1)(a) 25.2 -------------------------------------------------------------------------------- Attempt, except when delivery is charged 777.04(1) 5.1 -------------------------------------------------------------------------------- If possession is charged and the offense would be a second degree felony under 893.13(1)(a)1 893.13(6)(a) -------------------------------------------------------------------------------- If possession of cannabis is charged 893.13(6)(b) -------------------------------------------------------------------------------- If delivery of cannabis is charged 893.13(3) -------------------------------------------------------------------------------- Comment If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See State v. Medlin, 273 So.2d 394 (Fla.1973). This instruction was adopted in 1981 and amended in 1997 [697 So.2d 84] and 2007. See also SC03-629 [869 So.2d 1205 (Fla. 2004)]. 25.6 DRUG ABUSE — CONTRABAND IN SPECIFIED LOCATIONS § 893.13(1)(c)(d), & (e) (c)-(f), Fla....

...ents beyond a reasonable doubt: *255 1. (Defendant) [sold] [manufactured] [delivered] [possessed with intent to sell] [possessed with intent to manufacture] [possessed with intent to deliver] a certain substance. Give 2 a, or 2 b or c as applicable. § 893.13(1)(c), Fla. Stat. 2. a. in, on, or within 1,000 feet of the real property comprising a child care facility or a public or private elementary, middle, or secondary school between the hours of 6:00 a.m. and 12:00 a.m. midnight. s. 893.13(1)(c) § 893.13(1)(c-f), Fla....

...tution] [a public state, county or municipal park] [a community center] [a publicly owned recreation facility] [a physical place for worship at which a church or religious organization regularly conducts religious services] [a convenience business]. s. 893.13(1)(d) c. in, on, or within 1000 feet of [a physical place for worship at which a church or religious organization regularly conducts a religious services] [a convenience business]. § 893.13(1)(e) 3....

...efendant) not guilty. Lesser Included Offenses --------------------------------------------------------------------------- DRUG ABUSE — CONTRABAND IN SPECIFIED LOCATIONS --------------------------------------------------------------------------- — 893.13(1)(c)(d), & (e) (c)-(f) --------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. --------------------------------------------------------------------------- Drug abuse possession 893.13(1)(f)(6)(a) 25.7 --------------------------------------------------------------------------- None --------------------------------------------------------------------------- Comment This instruction is based on section 893.13, Florida Statutes, (1997), and adapted from the standard instruction on sale of contraband near a school....

...he place where the contraband was found. This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], 1997 [697 So.2d 84], and 2000 [765 So.2d 692], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004)]. 25.7 DRUG ABUSE — POSSESSION § 893.13(6)(a), Fla....

...*259 Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See State v. Medlin, 273 So.2d 394 (Fla.1973). Note § 893.13(6)(b), Fla....

...e than 20 grams of cannabis. This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205] and 1997 [697 So.2d 84], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004)]. 25.8 DRUG ABUSE — OBTAINING CONTROLLED SUBSTANCE BY FRAUD, ETC. § 893.13(7)(a)9, Fla....

...ilty. Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment This instruction was adopted in 1981 and amended in 1989, and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004)]. 25.9 TRAFFICKING IN CANNABIS § 893.135(1)(a), Fla....

...The quantity of the cannabis involved was [in excess of 25 pounds] [300 or more of cannabis plants]. See State v. Dominguez, 509 So.2d 917 (Fla.1987) . 4. (Defendant) knew that the substance was cannabis. If applicable under the facts of the case and pursuant to § 893.135(2), Fla....

...For example, if it is alleged that the defendant intended to sell heroin, but actually sold cannabis, the alternate element 4 would be given. [4. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla....

...er depending on the amount of cannabis involved. Therefore, iIf you find the defendant guilty of tTrafficking in cCannabis, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that: Enhanced penalty. See § 893.135(1)(a)1.-3., Fla....

...[The quantity of the substance involved was [10,000 pounds or more.] [10,000 or more cannabis plants.]] Lesser Included Offenses ------------------------------------------------------------------------------------------------- TRAFFICKING IN CANNABIS — 893.135(1)(a) ------------------------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ------------------------------------------------------------------------------------------------- Trafficking offenses requiring lower quantities of cannabis 893.135(1)(a)1 and 2 25.9 ------------------------------------------------------------------------------------------------- Attempt (but not conspiracy), except when delivery is charged 777.04(1) 5.1 ------------------------------------------------------------------------------------------------- If sale, manufacture or delivery is charged 893.13(1)(a) 25.2 ------------------------------------------------------------------------------------------------- If purchase is charged 893.13(2)(a) ------------------------------------------------------------------------------------------------- Bringing cannabis into state 893.13(5) ------------------------------------------------------------------------------------------------- Possession of cannabis — if less than 20 grams of cannabis 893.13(6)(a) ------------------------------------------------------------------------------------------------- Delivery of less than 20 grams of cannabis 893.13(3) ------------------------------------------------------------------------------------------------- Comment This instruction was adopted in 1981 and amended in 1987 [509 So.2d 917], 1989 [543 So.2d 1205], and 1997 [697 So.2d 84], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004)]. 25.10 TRAFFICKING IN COCAINE § 893.135(1)(b), Fla....

...The quantity of the substance involved was 28 grams or more. See State v. Dominguez, 509 So.2d 917 (Fla.1987) . *263 4. (Defendant) knew that the substance was [cocaine] [a mixture containing cocaine]. If applicable under the facts of the case and pursuant to § 893.135(2), Fla....

...For example, if it is alleged that the defendant intended to sell heroin but actually sold cocaine, the alternate element 4 would be given. [4. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla....

...s.] d. [The quantity of the substance involved was 150 kilograms or more. but less than 300 kilograms.] Lesser Included Offenses ---------------------------------------------------------------------------------------------- TRAFFICKING IN COCAINE — 893.135(1)(b)1 & 2 ---------------------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ---------------------------------------------------------------------------------------------- Trafficking offenses requiring lower quantities of cocaine 893.135(1)(b)1 25.10 ---------------------------------------------------------------------------------------------- Attempt (but not conspiracy), except when delivery is charged 777.04(1) 5.1 ---------------------------------------------------------------------------------------------- If sale, manufacture, or delivery is charged 893.13(1)(a) 25.2 ---------------------------------------------------------------------------------------------- If purchase is charged 893.13(2)(a) ---------------------------------------------------------------------------------------------- Bringing cocaine into state 893.13(5) ---------------------------------------------------------------------------------------------- Possession of cocaine 893.13(6)(a) ---------------------------------------------------------------------------------------------- Comment This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1987 [509 So.2d 917], 1989 [543 So.2d 1205], and 1997, [697 So.2d 84], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004)]. 25.11 TRAFFICKING IN ILLEGAL DRUGS § 893.135(1)(c), Fla....

...(Defendant) knew that the substance was [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [(specific substance alleged)] [a mixture containing [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [ (specific substance alleged)]]. If applicable under the facts of the case and pursuant to § 893.135(2), Fla....

...For example, if it is alleged that the defendant intended to sell heroin but actually sold (specific substance alleged), the alternate element 4 would be given. [4. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla....

...[The quantity of the substance involved was 28 grams or more but less than 30 kilograms.] d. [The quantity of the substance involved was 30 kilograms or more.] Lesser Included Offenses -------------------------------------------------------------------------------------------------- TRAFFICKING IN ILLEGAL DRUGS — 893.135(1)(c)1 and 2 -------------------------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. -------------------------------------------------------------------------------------------------- Trafficking offenses requiring lower quantities of illegal drugs 893.135(1)(c)1 25.11 -------------------------------------------------------------------------------------------------- Attempt (but not conspiracy), except when delivery is charged 777.04(1) 5.1 -------------------------------------------------------------------------------------------------- If sale, manufacture or delivery is charged 893.13(1)(a) 25.2 -------------------------------------------------------------------------------------------------- If purchase is charged 893.13(2)(a) -------------------------------------------------------------------------------------------------- Bringing same illegal drug as charged into state 893.13(5) ------------------------------------------------------------------------------------------------- Possession of same illegal drug 893.13(6)(a) ------------------------------------------------------------------------------------------------- *268 Comment This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1987 [509 So.2d 917], 1989, [543 So.2d 1205], and 1997 [697 So.2d 84], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004)]. 25.12 TRAFFICKING IN PHENCYCLIDINE § 893.135(1)(d), Fla.Stat....

...The quantity of the substance involved was 28 grams or more. See State v. Dominguez, 509 So.2d 917 (Fla.1987) . 4. (Defendant) knew that the substance was [phencyclidine] [a mixture containing phencyclidine]. If applicable under the facts of the case and pursuant to § 893.135(2), Fla....

...For example, if it is alleged that the defendant intended to sell heroin but actually sold phencyclidine, the alternate element 4 would be given. [4. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla....

...[The quantity of the substance involved was 400 grams or more.] but less than 800 grams.] Lesser Included Offenses ----------------------------------------------------------------------------------------------------- TRAFFICKING IN PHENCYCLIDINE — 893.135(1)(d) ----------------------------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ----------------------------------------------------------------------------------------------------- Trafficking offenses requiring lower quantities of phencyclidine 893.135(1)(d)1.a and b 25.9 ------------------------------------------------------------------------------------------------------ Attempt (but not conspiracy), except when delivery is charged 777.04(1) 5.1 ------------------------------------------------------------------------------------------------------ If sale, manufacture or delivery is charged 893.13(1)(a) 25.2 ------------------------------------------------------------------------------------------------------ If purchase is charged 893.13(2)(a) ------------------------------------------------------------------------------------------------------ Bringing phencyclidine into state 893.13(5) ------------------------------------------------------------------------------------------------------ Possession of phencyclidine 893.13(6)(a) ------------------------------------------------------------------------------------------------------ Comment This instruction was adopted in 1981 and amended in 1987 [509 So.2d 917], 1989 [543 So.2d 1205], and 1997 [697 So.2d 84], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004)]. 25.13 TRAFFICKING IN METHAQUALONE § 893.135(1)(e), Fla....

...The quantity of the substance involved was 28 200 grams or more. See State v. Dominguez, 509 So.2d 917 (Fla.1987) . *271 4. (Defendant) knew that the substance was [methaqualone] [a mixture containing methaqualone]. If applicable under the facts of the case and pursuant to § 893.135(2), Fla....

...For example, if it is alleged that the defendant intended to sell heroin but actually sold methaqualone, the alternate element 4 would be given. [4. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla.Stat.), but actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] methaqualone or a mixture containing methaqualone.] Definitions....

...[The quantity of the substance involved was 25 kilograms or more.] but less than 50 kilograms.] Lesser Included Offenses ----------------------------------------------------------------------------------------------------- TRAFFICKING IN METHAQUALONE — 893.135(1)(e)1 ----------------------------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ----------------------------------------------------------------------------------------------------- Trafficking offenses requiring lower quantities of methaqualone 893.135(1)(e)1.a and b 25.13 ----------------------------------------------------------------------------------------------------- *273 Attempt (but not conspiracy), except when delivery is charged 777.04(1) 5.1 ----------------------------------------------------------------------------------------------------- If sale, manufacture or delivery is charged 893.13(1)(a) 25.2 ----------------------------------------------------------------------------------------------------- If purchase is charged 893.13(2)(a) ----------------------------------------------------------------------------------------------------- Bringing methaqualone into state 893.13(5) ----------------------------------------------------------------------------------------------------- Possession of methaqualone 893.13(6)(a) ----------------------------------------------------------------------------------------------------- Comment This instruction was adopted in 1981 and amended in 1987 [509 So.2d 917], 1989 [543 So.2d 1205], and 1997 [697 So.2d 84], and 2007....

...[2] The Committee additionally recommends updating the trafficking instructions to include the current proscribed amounts of drugs involved and recommends updating instruction 25.6, Contraband in Specified Locations, to include additional locations and distances in accordance with current legislation. See § 893.13(1)(c)-(f), Fla....

...In 1997, James was convicted in a Florida state court of attempted burglary of a dwelling, in violation of Florida Statute §§ 810.02 and 777.04. In 1998, James was convicted in Florida state court of trafficking in illegal drugs in violation of Florida Statute § 893.135....

...essing with intent to manufacture or distribute, a controlled substance . . . , for which a maximum term of imprisonment of ten years or more is prescribed by law.” § 924(e)(2)(A)(ii). The Florida Statute under which James was convicted, section 893.135(1)(b)(1)(b), reads as follows: Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive...

...w. Taylor, 495 U.S. at 590-91. Florida, like Georgia, has a three-tiered scheme for punishing drug-related offenses. Under Florida law, those three tiers are the following: (1) possession of any amount of a controlled substance, Fla. Stat. § 893.13(6)(a); (2) possession with intent to distribute a controlled substance, § 893.13(1)(a); and (3) trafficking in cocaine by possession of 28 grams or more of the drug, § 893.135(1)(b)....

...8 of drugs that the defendant possessed, and the sentence imposed increases accordingly. See id. James was convicted under this third tier for possession of between 200 and 400 grams of cocaine. Fla. Stat. § 893.135(1)(b)(1)(b). Florida’s three-tiered system for punishing drug crimes is nearly identical to Georgia’s three-tiered scheme....

...He contends 1) that the trial court erred in denying his dispositive motion to suppress, and 2) that the statute under which he was convicted is facially unconstitutional. We reject both claims and write only to address Flagg's constitutional challenge to section 893.13, Florida Statutes....

...When Flagg opened his hand, the officer saw what turned out to be two pieces of crack cocaine fall to the ground. Flagg was arrested, and during a search incident to arrest, a crack pipe was discovered in Flagg's pocket. *140 Flagg was charged with possession of a controlled substance in violation of section 893.13(6)(a), a third-degree felony, and possession of drug paraphernalia in violation of section 893.147(1)(b), a first-degree misdemeanor Flagg filed a motion to suppress the drugs and crack pipe on the basis that the stop was illegal....

...The trial court accepted the plea and sentenced Flagg to 24.975 months in prison for the possession offense and to time served for the paraphernalia offense. This timely appeal follows. In addition to challenging the denial of the motion to suppress, Flagg argues for the first time on appeal [1] that section 893.13(6)(a) is unconstitutional because the mens rea requirement in the statute was eliminated by section 893.101, which provides in pertinent part that: The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter....

...denied, 915 So.2d 1198 (Fla.2005). Flagg acknowledges this contrary authority, but contends that we should recede from our prior decisions and adopt the reasoning of Shelton v. Secretary, Department of Corrections, ___ F.Supp.2d ___, 2011 WL 3236040 (M.D.Fla. 2011), which held section 893.13 facially unconstitutional based on the same argument presented here....

...the controlled substance"). Furthermore, because lack of knowledge is not a defense to a true strict liability crime, [3] the availability of the affirmative defense in section 893.101 undermines the essential premise in Shelton that the offenses in section 893.13 are strict liability crimes that may not be constitutionally punished as felonies....

...Adkins, 71 So.3d 184 (Fla. 2d DCA 2011). Although we agree that the uncertainty caused by Shelton is affecting the administration of justice around the state and that an expeditious decision from the supreme court addressing the constitutionality of section 893.13 is needed, we do not see any reason not to reaffirm our view that the statute is constitutional. Indeed, we believe that a definitive statement from this court reaffirming the constitutionality of section 893.13 notwithstanding Shelton will promote the consistent administration of justice by resolving the issue for the trial courts, thereby allowing drug prosecutions to proceed, at least until the supreme court or another district court weighs in on the issue....

...on the issue. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (recognizing that "in the absence of interdistrict conflict, district court decisions bind all Florida trial courts"). In sum, for the reasons stated above, we reject Flagg's claim that section 893.13 is facially unconstitutional and affirm his conviction and sentence....

...The district court denied petitioner's motion for clarification, but granted his petition for certificate of direct conflict and certified such to this Court. Petitioner then invoked our discretionary jurisdiction. Resolution of this matter, and of the conflict between the district courts, depends upon our interpretation of section 893.13, Florida Statutes (1977)....

...r's imprisonment. If possession of such is a second-degree felony, as respondent contends, then the conspiracy offense is a third-degree felony, and petitioner's probation period does not exceed the maximum sentence which may be imposed therefor. Subsection 893.13(1)(a)2, Florida Statutes (1977), provides as follows: Except as authorized by this chapter and chapter 500, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance....

...775.084; except that the sale, delivery, or possession of in excess of 100 pounds of cannabis as controlled in s. 893.03(1)(c) shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Petitioner contends that in order to be convicted of a second-degree felony under subsection 893.13(1)(a)2, Florida Statutes (1977), the person charged with possessing in excess of 100 pounds of cannabis must have possessed such with intent to sell or deliver the cannabis. He further asserts that simple possession of over 100 pounds is covered by subsection 893.13(1)(e), Florida Statutes (1977), which provides: It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant t...

...denied, 388 So.2d 1109 (Fla. 1980); Schueren v. State, 370 So.2d 83 (Fla. 1st DCA 1979); Chewning v. State, 366 So.2d 144 (Fla. 1st DCA 1979); and Aylin v. State, 362 So.2d 435 (Fla. 1st DCA 1978). Respondent, the state, on the other hand, argues that section 893.13, Florida Statutes (1977), and the legislative intent thereof are both clear, and that mere possession of more than 100 pounds of cannabis is a second-degree felony. Respondent's argument is supported by decisions from the Fourth District Court of Appeal. See Chesnut v. State, 382 So.2d 1349 (Fla. 4th DCA 1980); and State v. Brady, 379 So.2d 1294 (Fla. 4th DCA 1980). We agree with respondent's contention that section 893.13, Florida Statutes (1977), clearly and unambiguously establishes that mere possession of over 100 pounds of cannabis constitutes a second-degree felony, regardless of the possessor's intended use therefor. Section 893.13(1)(a)2, Florida Statutes (1977), provides generally that one who sells, manufactures, delivers, or possesses with intent to sell, manufacture, or deliver cannabis is guilty of a third-degree felony. Simple possession of cannabis is not included in the conduct proscribed under the provisions of the first portion of said section. The last clause of section 893.13(1)(a)2, Florida Statutes (1977), however, creates an exception for cases involving over 100 pounds of cannabis....

...tion, rather, it covers simple "possession." We think that the variation in the wording of the two clauses is a distinction with a difference. There is a marked difference between "possession with intent" and simple "possession." The first clause of section 893.13(1)(a)2 contains a provision that the last part does not, and "[t]he presence of such a provision in the one part and its absence in the other is an argument against reading it as implied." United States v....

...Nor is this a situation justifying departure from the plain, literal meaning of the statute. Such departure is permitted when a literal interpretation would lead to an illogical result or one not intended by the lawmakers. State ex rel. Hughes v. Wentworth, 135 Fla. 565, 185 So. 357, 360 (1938). A literal reading of section 893.13(1)(a)2, Florida Statutes (1977), results in *1092 neither of the above....

...tory construction and is subsumed to and construed in pari materia with the rest of the statute, it is clear that possession really means "possession with intent." Regardless, however, of the merits of petitioner's statutory interpretation language, section 893.13(1)(a)2, Florida Statutes (1977), provides that "possession with intent" of cannabis is a third-degree felony while simple "possession" of over 100 pounds of the same constitutes a second-degree felony....

...the clear meaning of the statute. As always, legislative intent is the pole star by which we must be guided in interpreting the provisions of a law. See State v. Sullivan, 95 Fla. 191, 116 So. 255 (1928). The legislature has evidenced an intent, in section 893.13(1)(a)2, Florida Statutes (1977), to punish more severely those possessing large quantities of cannabis....

...be corrected, the language of the act, including its title, the history of its enactment, and the state of the law already in existence bearing on the subject", ... (Emphasis added.) The title to chapter 76-200, Laws of Florida, 1976, which amended section 893.13(1)(a) by adding the clause pertaining to amounts of cannabis exceeding 100 pounds, reads as follows: AN ACT relating to criminal penalties; amending s. 893.13(1)(a), Florida Statutes, providing that the sale, delivery or possession in excess of 100 pounds of cannabis is a felony of the second degree; providing an effective date....

...guilty of a second-degree felony — no reference whatsoever is made to an intent requirement. Petitioner argues that it is unreasonable to interpret chapter 76-200 as covering simple possession because a clause so doing would logically be located in section 893.13(1)(e), which relates to simple possession of cannabis....

...We agree that perhaps the provision relating to possession of over 100 pounds of cannabis could have been better located, but that affects neither the rule nor the clear meaning of the law. And, repeating ourselves, although the introductory clause of section 893.13(1)(a)2, Florida Statutes (1977), refers to "possession with intent," the portion in question creates an exception to that which precedes it, and need not and does not track the provisions thereof. Also relevant here are any amendments of section 893.13 since the enactment of chapter 76-200, for, "[t]he court has the right and duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation." Gay v. Canada Dry Bottling Co. of Florida, 59 So.2d 788, 790 (Fla. 1952). The subsequent legislative history of the act buttresses our interpretation thereof. Chapter 79-1, Laws of Florida, 1979, enacted section 893.135, Florida Statutes (1979), which provides that anyone "who is knowingly in actual or constructive possession of, in excess of 100 pounds of cannabis is guilty of a felony of the first degree." Such bears out respondent's observation that the legislature intends that more severe *1093 penalties be imposed upon those possessing large quantities of cannabis. Petitioner counters that section 893.135, Florida Statutes (1979), did nothing to resolve the question here, because it did not resolve the conflicting provisions of section 893.13 regarding possession and possession with intent, and that section 893.13(1)(e), Florida Statutes, would still control in a "mere possession" situation. Chapter 80-70, Laws of Florida, 1980, however, eliminated any such confusion the following year. It amended section 893.135 to provide that those possessing over 100 pounds of cannabis are guilty of a first-degree felony "notwithstanding the provisions of s. 893.13." The legislature thus made it clear that if one possesses over 100 pounds of cannabis, the penalty is the same regardless of the intent involved. The legislature's removal of any doubts regarding the statute reinforces our conclusion that section 893.13(1)(a)2 was intended to cover those who simply possessed over 100 pounds of cannabis. In light of the foregoing, we are of the opinion that the district court ruled properly in affirming petitioner's sentence. Section 893.13(1)(a)2 quite clearly provides that possession of over 100 pounds of cannabis is a second-degree felony....

...el, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee. WETHERELL, J. Appellant raises three issues in this direct appeal of his conviction and sentence: 1) that section 893.13, Florida Statutes, is facially unconstitutional; 2) that the trial court erred in denying his motion for judgment of acquittal; and 3) that the trial court erred in imposing a discretionary fine and surcharge that had not been orally pronounced....

...Rogers, Bureau Chief, Criminal Appeals, *842 Asst. Atty. Gen. and Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for respondent/appellant. HARDING, Justice. We have consolidated for our review three cases in which district courts of appeal considered the constitutionality of section 893.13(1)(i), Florida Statutes (Supp. 1990). See State v. Kirkland, 618 So.2d 230 (Fla. 2d DCA 1993); State v. Thomas, 616 So.2d 1198 (Fla. 2d DCA 1993); Brown v. State, 610 So.2d 1356 (Fla. 1st DCA 1992). Section 893.13(1)(i) imposes enhanced penalties on those who sell, purchase, manufacture, deliver, or possess controlled substances within 200 feet of a public housing facility....

...We therefore affirm the decisions of the Second District in Thomas and Kirkland and quash the First District's decision in Brown. We remand Brown for proceedings consistent with this opinion. The defendants in all three cases were charged with violating section 893.13(1)(i) by committing narcotics violations within 200 feet of a public housing facility....

...was intended" by the phrase "public housing facility." Brown, 610 So.2d at 1358. The court affirmed Brown's conviction. In the cases before us, the defendants in Kirkland, Thomas, and Brown argue that the phrase "public housing facility" as used in section 893.13(1)(i) is unconstitutionally vague....

...In the instant cases, there is sufficient doubt about the statute, requiring the doubt to be resolved in favor of the citizen and against the State. Thus, we find the statute facially invalid under the void-for-vagueness doctrine. The sticking point of section 893.13(1)(i) is the heart of the statute: The phrase "public housing facility" simply does not give citizens fair warning about what conduct is forbidden....

...[4] While that alone is not enough to render a statute unconstitutionally vague, we have found neither definitions from case law nor related statutes to aid us in determining the meaning of "public housing facility." As a result, arbitrary or discriminatory enforcement is likely. We note by comparison section 893.13(1)(e), which provides enhanced penalties for drug offenses that occur within 1000 feet of a "public or private elementary, middle, or secondary school." The plain language of the statute gives a clearer indication of the conduct prohibited than does the amorphous phrase "public housing facility" at issue in the instant case. In addition, the word "school" has a common understanding, while the same cannot be said about the phrase "public housing facility." When a statute such as section 893.13(1)(i) does not implicate constitutionally protected conduct in an overbreadth context, a facial challenge for vagueness will be upheld only if the enactment is impermissibly vague in all of its applications. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495-96, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Because section 893.13(1)(i) does not specify a standard of conduct, citizens and law enforcement must guess at what the statute prohibits. It therefore follows that such a statute is impermissibly vague in all applications. We find no need to resort to dictionaries or to present a parade of hypothetical horribles in reaching our conclusion that section 893.13(1)(i) is void for vagueness....

...The statute presents a due process problem because the phrase "public housing facility" gives virtually no notice to Florida citizens of the type of conduct banned. Art. I, § 9, Fla. Const. No matter what goals the Legislature had in mind when enacting section 893.13(1)(i), statutes nonetheless must include sufficient guidelines to put those who will be affected on notice as to what will render them liable to criminal sanctions....

...Such a practice would constitute judicial legislating, a practice neither our Constitution nor this Court allows. Art. II, § 3, Fla. Const.; Brown v. State, 358 So.2d 16 (Fla. 1978). The precision required of statutes must come from the Legislature. Having found the provision of section 893.13(1)(i) that deals with public housing facilities unconstitutionally void for vagueness, we affirm the decisions of the Second District in *844 Thomas and Kirkland and quash the First District's decision in Brown. We remand Brown for proceedings consistent with this opinion. We do not address the other issues raised in the briefs, and we do not pass on the constitutionality of the other provisions in section 893.13(1)(i)....

...GRIMES, J., dissents with an opinion, in which McDONALD, J., concurs. McDONALD, Justice, dissenting. I dissent. I cast my lot with and would approve Brown v. State, 610 So.2d 1356 (Fla. 1st DCA 1993). GRIMES, Justice, dissenting. I do not believe that section 893.13(1)(i), Florida Statutes (Supp....

...not only government subsidized housing for low income residents, but could also be read to include offices, construction sites, and other "facilities," that establish or serve public housing. We disagree, and join the First District, which held that section 893.13(1)(i) is not unconstitutionally void for vagueness....

...That marginal cases might exist where doubts may arise as to whether there may be prosecution under subsection (2)(a) does not render the enactment unconstitutionally vague. Sandstrom, 370 So.2d at 6. There are no doubt some types of facilities which cannot be said to clearly fall within the coverage of section 893.13(1)(i)....

...McDONALD, J., concurs. NOTES [1] The statute also applies enhanced penalties to drug offenses committed within 200 feet of a public or private college, university, or other postsecondary educational institution, or within 200 feet of a public park. § 893.13(1)(i), Fla....

...Butterworth, Atty. Gen., and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for respondent. GRIMES, Justice. We review State v. Burch, 545 So.2d 279 (Fla. 4th DCA 1989), in which the court certified the following question as one of great public importance: IS SECTION 893.13(1)(e), FLORIDA STATUTES (1987) CONSTITUTIONAL? Id....

...Art. V, § 3(b)(4), Fla. Const. We answer the question in the affirmative. There are two petitioners in this case. One was charged with selling cocaine, and the other was charged with buying cocaine, both within 1000 feet of a school, in violation of section 893.13(1)(e), Florida Statutes (1987). [*] The trial court declared the statute unconstitutional and dismissed the charges. The district court of appeal reversed and upheld the validity of the statute. Petitioners' initial argument is that chapter 87-243, Laws of Florida, of which section 893.13(1)(e) was a part, violates that portion of article III, section 6 of the Florida Constitution, which provides: Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title....

...State, 453 So.2d 808 (Fla. 1984), the constitution requires a "cogent relationship" among sections of an act in order to avoid unconstitutionality. I find that relationship lacking here. Therefore, I dissent. BARKETT and KOGAN, JJ., concur. NOTES [*] Section 893.13(1) reads in relevant part: (e) Except as authorized by this chapter, it is unlawful for any person to sell, purchase, manufacture, or deliver, or to possess with the intent to sell, purchase, manufacture, or deliver, a controlled subst...

...s (1989). In denying Williams' motion to dismiss, the trial court found that the Broward County Sheriff's Office manufactured crack cocaine for "a bonafied [sic] and legitimate law enforcement purpose" and that the Sheriff's Office acted pursuant to section 893.13(5)(b)(5), Florida Statutes (1989), and State v. Bass, 451 So.2d 986 (Fla. 2d DCA 1984). Williams proceeded to trial and the jury convicted him of purchasing a controlled substance within 1000 feet of a secondary school. § 893.13(1)(e), Fla....

...e Sheriff's approval. The stipulation also shows the procedure which the chemist used in making the crack cocaine. [4] The chemist's conversion of the powdered cocaine into crack cocaine clearly meets the definition of manufacture under the statute. Section 893.13, Florida Statutes (1989), which prohibits the sale, purchase, manufacture, delivery, or possession of a controlled substance contains two exclusions for law enforcement officials. Section 893.13(5)(b)5 excludes the "actual or constructive possession of controlled substances" by "[o]fficers or employees of state, federal, of local governments acting in their official capacity," and section 893.13(5)(c) excludes the "delivery of controlled substances by a law enforcement officer for bona fide law enforcement purposes in the course of an active criminal investigation." Section 893.13, however, does not contain a provision allowing law enforcement officials to manufacture a controlled substance....

...We conclude, however, that the State's claim that the downward departure sentence lacked a factual basis was properly preserved and has merit; we therefore reverse the sentence. Background The State charged Ayers with the third-degree felony offense of possession of cocaine in violation of section 893.13, Florida Statutes (2003), and the misdemeanors of *944 possession of paraphernalia in violation of section 893.147 and fleeing or attempting to elude in violation of section 316.1935, Florida Statutes (2003)....

...Whitson, 597 F.3d 1218, 1220 (11th Cir. 2010). 2 or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine . . . , commits a felony of the first degree, which felony shall be known as ‘trafficking in cocaine[.]’” Fla. Stat. § 893.135(1)(b)1....

...n.2 Indeed, the statute provides that “[a]ny person who knowingly . . . purchases . . . , or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine . . . , commits a felony of the first degree . . . .” Fla. Sta. § 893.135(1)(b)1. (emphasis added)....

...It is clear that U.S.S.G. § 4B1.2(b)’s definition of “controlled substance offense” -- which includes the possession of a controlled substance with intent to distribute but not the purchase thereof -- and Florida case law interpreting Florida Statute § 893.135(1)(b) compel the result in this case -- namely, that Roye’s conviction for trafficking in cocaine, which we must assume was for the purchase of 28 grams or more of cocaine, does not constitute a “controlled substance offense” justifying career offender status....

...As this Court explained in United States v. James, 430 F.3d 1150 (11th Cir. 2005): Florida . . . has a three-tiered scheme for punishing drug-related offenses. Under Florida law, those three tiers are the following: (1) possession of any amount of a controlled substance, Fla. Stat. § 893.13(6)(a); (2) possession with intent to distribute a controlled substance, § 893.13(1)(a); and (3) trafficking in cocaine by possession 7  of 28 grams or more of the drug, § 893.135(1)(b).1 Under this third tier, trafficking in cocaine is further delineated according to the amount of drugs that the defendant possessed, and the sentence imposed increases accordingly. Id....

...Although in James we only mentioned trafficking by possession, Florida’s “trafficking in cocaine” statute can also be violated by selling, purchasing, manufacturing, delivering, or importing 28 grams or more of cocaine. See Fla. Stat. § 893.135(1)(b)1. 8  Second, if we had had before us all of the relevant Shepard documents in this case, we almost surely would have been able to determine conclusively which prong of Florida�...

...Even following this approach, however, the two Shepard documents the government submitted -- namely, the information and the plea agreement -- do not resolve the ambiguity in Roye’s conviction. Count 1 of the information simply tracks the disjunctive language of Florida Statute § 893.135(1)(b) in stating that “[o]n March 26, 1996, [Roye] did unlawfully and knowingly sell, purchase, manufacture, deliver, or was knowingly in actual or constructive possession of more than More than [sic] 28 grams of Cocaine, a controlled substance defined in Section 893.03, contrary to Section 893.135.”3 DE 37-5. The plea agreement is equally uninformative, simply 3 Count 2 of the information charges Roye with possession of a controlled substance in violation of Florida Statute § 893.13(6)(a), which punishes the actual or constructive possession of a controlled substance but does not specify the quantity. See Fla. Stat. § 893.13(6)(a). Although Roye also pled no contest to this count, it is unclear from the limited information presented in this case whether the cocaine possessed for purposes of this simple possession charge is the same cocaine associated with the t...

...The importance of fully understanding the factual basis underlying Roye’s no contest plea is further underscored by the counterintuitive way in which Florida’s courts have interpreted the purchase and possession prongs of Florida Statute § 893.135(1)(b)....

...Florida’s intermediate appellate courts. See Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 775 (11th Cir. 2000). In Ras v. State, 610 So.2d 24 (Fla. Dist. Ct. App. 1992), the Second District Court of Appeals made clear that violation of the purchase prong of Florida Statute § 893.135(1)(b) does not necessarily imply violation of that statute’s possession prong....

...peal affirmed per curiam. Gibbs subsequently filed a pro se petition for writ of habeas corpus, which the Fourth District granted to the extent that it permitted Gibbs to argue that his dual convictions and sentences for trafficking possession under section 893.135(1)(b), Florida Statutes (1989), [1] and simple possession under section 893.13(1)(f), Florida Statutes (1989), [2] violated his right under the Fifth Amendment of the United States Constitution not to be placed in double jeopardy....

...tional issue: How is the comparative elements analysis made when a statute prohibits alternative types of conduct? The trafficking statute prohibits the potential alternatives of selling, purchasing, delivering, bringing into Florida, or possessing. § 893.135, Fla....

...We remand to the district court for further proceedings in accord with this decision. We decline to address the other issues raised in the briefs which are unrelated to the certified question. It is so ordered. KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING and ANSTEAD, JJ., concur. NOTES [1] Section 893.135(1)(b), Florida Statutes (1989), provides in relevant part: Any person who knowingly sells, purchases, manufactures, delivers, or brings into this State, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine ... is guilty of a felony of the first degree, which felony shall be known as "trafficking in cocaine." [2] Section 893.13(1)(f), Florida Statutes (1989) (now codified as section 893.13(6)(a), Florida Statutes (1995)), provides in relevant part: It is unlawful for any person to be in actual or constructive possession of a controlled substance.......

or deliver, in violation of Fla. Stat. § 893.13 (1)(A)(1). Although Joyner acknowledged that

affirmative defense. Based on its conclusion that section 893.13, Florida Statutes (2011) — which creates offenses

...This appears adequate to support an habitual offender sentence under section 775.084(1)(a)3, Florida Statutes (2002), which only requires that the felony for which the defendant is sentenced as an habitual offender and one of the two required prior felony convictions not be a violation of section 893.13 (purchase or possession of a controlled substance)....

...Even though one of the predicate convictions for appellant's habitual felony offender sentence involved possession of a controlled substance, appellant's *269 habitual offender sentence is authorized by statute because one of the predicate felony convictions on which the sentencing court relied was "not a violation of section 893.13 relating to purchase or the possession of a controlled substance." § 775.084(1)(a)(3.), Fla....

...As the Ishmael and Rollins courts, we read section 775.084(1)(a)(3.) to authorize a habitual felony offender sentence if the trial court finds that neither the sentencing felony nor one of the two predicate felonies involved a conviction for possession under section 893.13....

...After Wilkerson refused to leave, an officer arrested her on a charge of obstructing an officer in the performance of his duties and conducted a search. She was charged by information with four offenses: (1) possession of crack cocaine, in violation of section 893.13(1)(f); (2) possession of cannabis, in violation of section 893.13(1)(g); (3) possession of illicit drug paraphernalia, in violation of section 893.147; and (4) obstruction of a law officer in the execution of his legal duties without offering or doing violence to such officer, in violation of section 843.02....

...§ 4B1.4(a), Smith faced a mandatory minimum sentence of 180 months of imprisonment under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e). The district court ruled that Smith’s prior convictions for possession of marijuana with intent to sell within 1,000 feet of a school or church, Fla. Stat. § 893.13(1)(c)(2); sale of cocaine with intent to distribute, id. § 893.13(1)(a)(1); and possession of cocaine with intent to distribute, id., were “serious drug offense[s],” 18 U.S.C....

...§ 4B1.1(c)(3). The district court ruled that Nunez’s prior state convictions for possession of marijuana with intent to sell, Fla. Stat. 4  Case: 13-15227 Date Filed: 12/22/2014 Page: 5 of 12 § 893.13(1)(a)(2), and possession of cocaine with intent to sell, id., were “controlled substance offense[s],” U.S.S.G....

...jections and our review should be de novo. Because we conclude that the district courts committed no error, we need not decide which standard of review governs this issue. Smith and Nunez argue that their prior convictions for violations of section 893.13(1) of the Florida Statutes do not qualify as “serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A), and “controlled substance offense[s],” U.S.S.G. § 4B1.2(b). Smith and Nunez rely on our decision in Donawa v. United States Attorney General, where we were asked to decide whether section 893.13(1)(a)(2) was a “drug trafficking aggravated felony” under the Immigration and Nationality Act of 1965, 8 U.S.C....

...[§] 801 et seq.[,] the Controlled Substances Import and Export Act[,] 21 U.S.C. [§] 951 et seq.[,] or chapter 705 of title 46,” 18 U.S.C. § 924(c). We ruled that the “federal analogue,” 21 U.S.C. § 841(a)(1), to the Florida statute, Fla. Stat. § 893.13(1)(a)(2), supplied the elements of the “generic federal definition” of “drug trafficking crime.” Donawa, 735 F.3d at 1280–81 (internal quotation marks 8  Case: 13-15227 Date Filed: 12/22/2014 Page: 9 of 12 and citation omitted)....

...Richardson, 8 F.3d 769, 770 (11th Cir. 1993). The definitions of “serious drug offense,” 18 U.S.C. § 924(e)(2)(A)(ii), and “controlled substance offense,” U.S.S.G. § 4B1.2(b), are unambiguous. Nunez also argues that our precedents require us to hold that section 893.13(1) is not a controlled substance offense, but his argument fails....

...“controlled substance offense[s],” U.S.S.G. § 4B1.2(2) (Nov. 1988), only if they are “substantially similar” to federal drug trafficking crimes. 936 F.2d 533, 536–37 (11th Cir. 1991). Nunez maintains that, because we held in Donawa that section 893.13(1)(a)(2) is not a “drug trafficking crime,” 735 F.3d at 1281, section 893.13(1) cannot be a controlled substance offense....

...“similar offenses.” U.S.S.G. § 4B1.2(2) (Nov. 1988). But the definition of “controlled substance offense,” in this appeal, does not reference drug trafficking or a class of “similar offenses.” U.S.S.G. § 4B1.2(b) (Nov. 2013). Section 893.13(1) of the Florida Statutes is both a “serious drug offense,” 18 U.S.C....

...Accordingly, we answer the certified question in the affirmative and approve the decision of the district court below. It is so ordered. KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING and ANSTEAD, JJ., concur. NOTES [1] Section 893.15, Florida Statutes (1993), refers to subdivisions 893.13(1)(f) and (g). However, the legislature amended section 893.13, effective January 1, 1994, eliminating subdivisions 893.13(1)(f) and (g). See ch. 93-406, § 23, Laws of Florida. The legislature directed the Division of Statutory Revision of the Joint Legislative Management Committee to prepare a reviser's bill to conform all cross-references to section 893.13 as amended. See ch. 93-406, § 33, Laws of Florida. Pursuant to this section, the legislature subsequently amended section 893.15 to refer to persons who violated subdivision 893.13(6)(a) or (b)....

possessing cocaine with the intent to sell, Fla. Stat. § 893.13(l)(a). Phillips did not file any objections to

...e, the sentencing judge is entitled to impose a sentence up to the statutory maximum without having to make any factual findings. See Fla. R.Crim. P. 3.992. Since possession of cocaine is a third-degree felony with a five-year statutory maximum, see section 893.13, Florida Statutes, Williams' 30 month sentence is not illegal for purposes of Rule 3.800(a)....

...Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant. Robert E. Jagger, Public Defender, and Robert J. Lancaster, Asst. Public Defender, Clearwater, for appellee. GRIMES, Acting Chief Judge. This appeal involves a constitutional challenge to section 893.13(2)(a)7, Florida Statutes (1981), which requires that a lawfully dispensed controlled substance must be kept in the container in which it was originally delivered....

...by her prescription. On her way to work she was involved in a traffic accident. Subsequently she was detained for a driver's license violation and her purse was searched. The Centrax tablets were then discovered. She was charged with a violation of section 893.13(2)(a)7, a first degree misdemeanor, which provides as follows: (2)(a) It is unlawful for any person: ......

...To possess a controlled substance lawfully dispensed to him by a pharmacist or practitioner, in a container other than that in which the controlled substance was originally delivered. In county court Ms. Walker filed a motion to dismiss the information, arguing that section 893.13(2)(a)7 was unconstitutionally vague, overbroad, and violated the equal protection clauses of the state and federal constitutions....

...See also Horsemen's Benevolent & Protective Association v. Division of Pari-Mutuel Wagering, 397 So.2d 692 (Fla. 1981). Our task is first to examine the legislative goals of chapter 893, Florida's Drug Abuse Prevention and Control Act, and then to determine whether the means chosen, that is section 893.13(2)(a)7, bears a reasonable relationship to any of those objectives....

...As found by the court below, these are "reasonable and worthwhile objectives." We also agree with the trial court's determination that only the third objective, that of expanded state control over the manufacture and distribution of dangerous drugs, is a legitimate legislative objective to which section 893.13(2)(a)7 could be rationally related....

...tate and may serve to obstruct that objective: [T]he statute under attack in the case at bar is inconsistent with the objective of the statutory scheme and "cannot be said to bear a fair and substantial relationship to the objective sought." Indeed, § 893.13(2)(a)(7) Fla....

...The legislative concern of chapter 893, however, is to convict persons who illegally possess controlled substances, not those who remove prescription drugs from their original containers. When weighed against the stated legislative objective, we find that the application of section 893.13(2)(a)7 is an irrational means to achieve that goal....

...tion. To avoid conviction for a possession charge, the individual ultimately will have to show that he obtained such substance in a legal manner. He can do that even without ever producing the so-called original container. [1] In the final analysis, section 893.13(2)(a)7 criminalizes activity that is otherwise inherently innocent....

...persons involved in criminal activity. Yet, because the statute was susceptible of application to entirely innocent activities, the court struck it down as creating prohibitions which completely lacked any rational basis. In the same manner, even if section 893.13(2)(a)7 helps law officers in deciding whom to arrest, the blanket prohibition against carrying prescription drugs which are controlled substances except in original containers causes activities which are otherwise entirely innocent to become criminal violations....

...Without evidence of criminal behavior, the prohibition of this conduct lacks any rational relation to the legislative purpose of controlling drug distribution. See Schultz v. State, *1141 361 So.2d 416 (Fla. 1978); Foster v. State, 286 So.2d 549 (Fla. 1973). Accordingly, we find that section 893.13(2)(a)7 does not bear a reasonable relationship to the legislative objective of expanding the state's control over the manufacture and distribution of dangerous drugs. We declare section 893.13(2)(a)7, Florida Statutes (1981), in violation of our state and federal constitutions, and we affirm the dismissal of the information....

...ent evidence to support the jury verdict, the verdict will not be reversed on appeal. State v. Law, 559 So.2d 187, 188 (Fla.1989). The standard jury instructions set out the three elements that must be proven to establish possession of cocaine under section 893.13(6)(a), which are: 1) that the defendant possessed a substance; 2) that the substance was cocaine; and 3) that the defendant had knowledge of the presence of the substance....

...See Fla. R.Crim. P. 3.380. The trial court granted Odom's motion and acquitted him of possession of cocaine. On appeal, the parties maintain that the present case concerned Odom's constructive, rather than actual, possession of cocaine in violation of section 893.13(1)(a), Florida Statutes (2001)....

...Atty. Gen., Miami, for appellee. OVERTON, Justice. Rafael Cilento, a medical doctor licensed to practice in Florida, was convicted in circuit court pursuant to plea of nolo contendere of selling or delivering a controlled substance in violation of section 893.13(1)(a), Florida Statutes (1975)....

...n bad faith and not in the course of professional practice, a controlled substance, to wit: methaqualone... ." Section 893.03(3)(a)(6) classifies methaqualone as a Schedule III substance, sale or delivery of which is a third-degree felony *665 under section 893.13(1)(a)(2). To distribute or dispense a controlled substance is made a misdemeanor of the first degree by section 893.13(2)(a), (b)....

...But this is not a case where the legislature attempted to control "any other drug to which the drug abuse laws of the United States apply... ." 272 So.2d at 474. The final issue on appeal is whether the appellant was properly charged with a felony. Section 893.13, Florida Statutes (1975), which defines "prohibited acts" under the controlled substances law, does not explicitly cover the conduct of a medical doctor who issues a prescription for a controlled *666 substance outside the course of his professional practice. Section 893.13(1)(a) makes it unlawful for any person to "sell, manufacture, or deliver, a controlled substance." Subsection (1)(a) goes on to indicate the degree of offense committed by a violator, depending on which controlled substance is involved. By virtue of its classification, sale or delivery of methaqualone is a felony. Section 893.13(2)(a)(1) makes it unlawful for any person to "distribute or dispense" a controlled substance, and section 893.13(2)(b) makes this offense a misdemeanor....

...Appellant would have us conclude that on the face of the statute it is unclear whether either subsection (1) or subsection (2) was intended to cover the conduct at issue and the statute is therefore inapplicable or, at most, that a physician can be convicted only of a misdemeanor under 893.13(2)....

...." This proviso would not be in the act unless it were intended that a prescription given in bad faith, or outside the doctor's professional practice, be penalized. This provision is "a necessary exception to the imposition of criminal penalties for the conduct proscribed under Section 893.13." State v....

...The fact that certain conduct might violate more than one criminal provision does not necessarily render it invalid. Fayerweather v. State, 332 So.2d 21 (Fla. 1976). Appellant, as a physician, is capable of violating either or both of the provisions, 893.13(1) and 893.13(2). We find that section 893.13 is constitutional and that the information did properly charge the appellant with felonious violation of section 893.13(1)....

...BOYD, Justice, concurring in part and dissenting in part. I concur with that portion of the Court's opinion that finds the statute to be constitutional. I dissent, however, from the majority's decision holding that the appellant was properly charged with and convicted of a felony. Section 893.13, Florida Statutes (1975), which defines "prohibited acts" under the controlled substances law, does not explicitly cover the conduct of a medical doctor who issues a prescription for a controlled substance in bad faith and outside the course of his professional practice. I agree, however, for the reasons stated by the majority, that such conduct is intended to be punishable under section 893.13. The question the appellant presents is whether it is punishable as a felony or as a misdemeanor. *667 Section 893.13(1)(a) makes it unlawful for any person to "sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance." Subsection (1)(a) goes on to indicate the degree of offense committed by a violator, depending on which controlled substance is involved. By virtue of its classification, sale or delivery of methaqualone is a felony. Section 893.13(2)(a)1. makes it unlawful for any person to "distribute or dispense" a controlled substance and section 893.13(2)(b) makes this offense a misdemeanor....

...constructions, the one which operates in favor of the life or liberty of the accused is to be preferred. See, e.g., Whitehurst v. State, 105 Fla. 574, 141 So. 878 (1932); Ex parte Bailey, 39 Fla. 734, 23 So. 552 (1897). I would hold, therefore, that section 893.13 punishes the conduct at issue as a misdemeanor....

...Rejecting the holding of Shelton v. Sec'y, Dep't of Corrs., 802 F.Supp.2d 1289 (M.D.Fla.2011) and State v. Washington, No. F11-11019 (Fla. 11th Cir.Ct. Aug. 17, 2011), we hold, as we explicitly did in Taylor v. State, 929 So.2d 665 (Fla. 3d DCA 2006) [1] , that section 893.13, as *723 amended by section 893.101, Florida Statutes (2002), is constitutional....

...STANCE WILL PASS TO HER CHILD AFTER BIRTH IS A VIOLATION OF FLORIDA LAW? Our jurisdiction is based on article V, section 3(b)(4) of the Florida Constitution, and we answer the certified question in the negative. The issue before the court is whether section 893.13(1)(c)(1), Florida Statutes (1989), permits the criminal prosecution of a mother, who ingested a controlled substance prior to giving birth, for delivery of a controlled substance to the infant during the thirty to ninety seconds following the infant's birth, but before the umbilical cord is severed. Johnson presents four arguments attacking the applicability of section 893.13(1)(c)(1) to her conviction: 1) the district court's interpretation of the statute violates the legislature's intent; 2) the plain language of the statute prevents her conviction; 3) the conviction violates her constitutional rights of...

...o a minor, and that the conviction does not violate Johnson's constitutional rights. We adopt Judge Sharp's analysis concerning the insufficiency of the evidence to support Johnson's conviction and her analysis concerning the legislature's intent in section 893.13(1)(c)(1)....

...f the instant case, compels this Court to construe the statute in favor of Johnson. The text of Judge Sharp's dissent is as follows: Johnson appeals from two convictions for delivering a controlled substance to her two minor children in violation of section 893.13(1)(c)1., Florida Statutes (1989)....

...sixty-to-ninety second period after they were expelled from her birth canal but before their cords were severed. The application of this statute to this concept of "delivery" presents a case of first impression in this state. Because I conclude that section 893.13(1)(c)1....

...the child was born which, of course, would probably have killed both herself and her child. This illustrates the absurdity of applying the delivery-of-a-drug statute to this scenario. However, in my view, the primary question in this case is whether section 893.13(1)(c)1....

...My review of other pertinent legislative enactments, specifically chapter 415, leads me to conclude in this case that the Legislature expressly chose to treat the problem of drug dependent mothers and newborns as a public health problem and that it considered but rejected imposing criminal sanctions, via section 893.13(1)(c)1....

...m. It also recommends that no punitive measures be taken against pregnant women who are users of illicit drugs when no other illegal acts, including drug-related offenses, have been committed. See 1990 Policy Statement. In summary, I would hold that section 893.13(1)(c)1....

...Therefore, we quash the decision below, answer the certified question in the negative, and remand with directions that Johnson's two convictions be reversed. It is so ordered. BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES and KOGAN, JJ., concur. NOTES [1] Section 893.13(1)(c)1., Florida Statutes (1989) provides as follows: 893.13 Prohibited acts; penalties — * * * * * * (c) Except as authorized by this chapter, it is unlawful for any person 18 years of age or older to deliver any controlled substance to a person under the age of 18 years, or to use or hire a person un...

...State, 511 So.2d 1037 (Fla. 4th DCA 1987), to answer a certified question of great public importance. [1] We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Respondent Daophin was convicted of trafficking in cocaine by delivery in excess of 400 grams contrary to section 893.135(1)(b)3, Florida Statutes (1983). Relying on the authority of Butler v. State, 497 So.2d 1327 (Fla. 4th DCA 1986), the district court reversed because the trial court had refused to instruct the jury on simple possession of cocaine, section 893.13(1)(e), Florida Statutes (Supp....

...1984), as a lesser included offense. In doing so, the district court acknowledged that possession of cocaine was not a category one necessarily lesser included offense under Florida Standard Jury Instructions in Criminal Cases which were in effect at the time. Section 893.135(1)(b) reads as follows: (b) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine as described in s....

...g in possession of 28 grams or more of cocaine. The schedule of lesser included offenses, page 274, Florida Standard Jury Instructions (Criminal), recognized that instructions on lesser included (category one) offenses would be given as follows: (1) section 893.13(1)(a) if sale, manufacture, or delivery is charged; (2) section 893.13(1)(d) if bringing cocaine into the state is charged; or (3) section 893.13(1)(e) if possession of cocaine is charged. [2] The state chose by its allegations to narrow the charge to trafficking by delivery only. In addition to the primary charge of trafficking by delivery of over 400 grams of cocaine (section 893.135(1)(b)3), the jury was instructed on three lesser included offenses: (1) trafficking by delivery of over 200 but less than 400 grams of cocaine (section 893.135(1)(b)2); (2) trafficking by delivery of over 28 but less than 200 grams of cocaine (section 893.135(1)(b)1); and (3) delivering 28 grams or less of cocaine (section 893.13(1)(a))....

...State, 461 So.2d 284 (Fla. 4th DCA 1985). It is so ordered. EHRLICH, C.J., and OVERTON, McDONALD and GRIMES, JJ., concur. BARKETT and KOGAN, JJ., dissent. NOTES [1] Daophin, 511 So.2d at 1038: MUST A JURY BE INSTRUCTED ON SIMPLE POSSESSION OF COCAINE PURSUANT TO SECTION 893.13(1)(e), FLORIDA STATUTES, WHERE THE INFORMATION CHARGES TRAFFICKING BY DELIVERY [AND ONLY BY DELIVERY] IN AN AMOUNT GREATER THAN 400 GRAMS PURSUANT TO SECTION 893.135(1)(b)(3), FLORIDA STATUTES? [2] In Rotenberry v. State, 468 So.2d 971 (Fla. 1985), we held that §§ 893.13 and 893.135 addressed separate offenses and that crimes under the former section were not necessarily lesser included offenses under the latter section. Consequently, the standard jury instructions were then amended to provide that there were no necessarily lesser included offenses (category one) to § 893.135 and to reclassify the former category one offenses as category two, permissive lesser included offenses....

(last visited on Nov. 1, 2013). . See, e.g., § 893.13(6)(a), Fla. Stat. (2013) ("It is unlawful to be

...Appellant-defendant, Robert Allen Willis, appeals a judgment of conviction and imposition of sentence for unlawful possession of barbiturates. We reverse. Appellant-defendant, Robert Allen Willis, was charged by information with unlawful possession of barbiturates in violation *824 of § 893.13(1)(e), Florida Statutes 1973....

...The defendant took the stand in his own behalf and generally denied all knowledge of the presence of the phenobarbitol in the apartment. The sole question presented for our determination in this appeal is whether the trial court erred in denying the defendant's motions for a judgment of acquittal. Section 893.13(1)(e), Florida Statutes 1973, provides: "It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice... ." Phenobarbital is a controlled substance. Section 893.02(3) and Section 893.03(4), Florida Statutes 1973. For the purposes of § 893.13(1)(e), actual possession exists where the accused has physical possession of the controlled substance and knowledge of such physical possession....

...From the foregoing we are of the opinion that the evidence presented by the state is not sufficient to present a jury issue on the question of the defendant's knowledge of the presence of the phenobarbital in the apartment. We determine that the state failed to make out a prima facie case under § 893.13(1)(e), Florida Statutes, and that the trial court erred in denying defendant's motions for a judgment of acquittal....

...Gen., West Palm Beach, for respondent. PER CURIAM. We review State v. Scates, 585 So.2d 385, 386 (Fla. 4th DCA 1991), in which the court certified the following question as being of great public importance: MAY A TRIAL COURT PROPERLY DEPART FROM THE MINIMUM MANDATORY PROVISIONS OF SECTION 893.13(1)(e), FLORIDA STATUTES (1989), UNDER THE AUTHORITY OF *505 THE DRUG REHABILITATION PROVISIONS OF SECTION 397.12, FLORIDA STATUTES (1989)? We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. Scates pled guilty to purchasing one rock of cocaine from an undercover sheriff's deputy within 1000 feet of a school in violation of section 893.13(1)(e)(1), Florida Statutes (1989)....

...g treatment would be successful. The court placed Scates on two years' probation and ordered him to undergo drug rehabilitation pursuant to section 397.12, Florida Statutes (1989). [1] The Fourth District Court of Appeal reversed on the premise that section 893.13(1)(e)(1) required the imposition of a minimum mandatory sentence of three years....

...Lane, 582 So.2d 77 (Fla. 4th DCA 1991); State v. Baxter, 581 So.2d 937 (Fla. 4th DCA 1991), vacated on other grounds, Baxter v. Letts, 592 So.2d 1089 (Fla. 1992); State v. Liataud, 587 So.2d 1155 (Fla. 4th DCA 1991), review granted, 593 So.2d 1052 (Fla. 1992). Section 893.13(1)(e)(1) provides that individuals convicted of manufacturing, selling, delivering, or purchasing cocaine within 1000 feet of a school "shall be sentenced to a minimum term of imprisonment of 3 calendar years." The statute is intended to create a drug-free zone around Florida's schools, State v....

...nd Rehabilitative Services]... . If referred by the court, the referral may be in lieu of or in addition to final adjudication, imposition of any penalty or sentence, or any other similar action. We have the problem of reconciling the requirement of section 893.13(1)(e)(1) to impose a three-year sentence with the mandate of section 397.12 to find alternatives to prison for violations of chapter 893 where such alternatives would be more beneficial....

...in favor of the accused. See § 775.021, Fla. Stat. (1989); Lambert v. State, 545 So.2d 838, 841 (Fla. 1989). On its face, section 397.12 applies to chapter 893, and this application is not limited by any other provision of chapter 397. Also, while section 893.13(1)(e) does call for a minimum three-year sentence, when read in conjunction with the other sentencing provisions of chapter 893, it does not absolutely preclude trial judges from exercising their discretion to reduce the sentence. Two other sections in chapter 893 contain mandatory minimum sentences. Sections 893.135 and 893.20, Florida Statutes (1989), provide that the minimum sentences contained therein shall "not be suspended, deferred, *506 or withheld." Also, sections 893.135 and 893.20 expressly refer to their sentences as "mandatory." There is no similar restriction in section 893.13(1)(e), and the word mandatory is not used. The omission of this language implies that the legislature intended a different construction, allowing trial judges greater discretion in sentencing decisions under section 893.13(1)(e)....

...se. The State argues that section 397.12 cannot apply here because it only relates to possession. See § 397.011(2), Fla. Stat. (1989); § 893.15, Fla. Stat. (1989) (expressly providing that chapter 397 is an alternative to sentencing under sections 893.13(1)(f) and (1)(g) (applying to possession of drugs))....

...l amount of cocaine for personal use. The State also cites the rule that when construing two competing statutes, the later promulgated statute should prevail as the last expression of the legislature's intent. Thus, the minimum mandatory sentence in section 893.13(1)(e) should prevail because that statute was enacted after section 397.12....

...In this case, application of a mandatory minimum sentence would not further the legislative goal of providing alternatives to incarceration for drug addicts with a chance at meaningful rehabilitation. Accordingly, we hold that trial judges may refer a defendant convicted under section 893.13(1)(e)(1) to a drug abuse program pursuant to section 397.12 rather than impose a minimum three-year sentence....

...Section 397.12, Florida Statutes (1989), authorizing the referral of those convicted of a violation of chapter 893 to a drug treatment program, was enacted in 1973 at a time when mandatory minimum sentences *507 were unknown except in capital cases. Ch. 73-75, Laws of Fla. In 1987, the legislature first passed section 893.13(1)(e), specifically prohibiting the commission of drug crimes within 1000 feet of a school. Ch. 87-243, Laws of Fla. Two years later, section 893.13(1)(e) was amended to provide that violators, with respect to certain controlled substances (including cocaine) "shall be sentenced to a minimum term of imprisonment of 3 calendar years and shall not be eligible for parole or statutory gain-time under s....

...While the statute could have used the word "mandatory" and could have provided that the sentence not be "suspended, deferred or withheld," can there be any doubt what the legislature intended? The accepted rules of statutory construction all lead to the same conclusion. Section 397.12 and section 893.13(1)(e)(1) are in facial conflict. Therefore, the later statute, which is section 893.13(1)(e), should prevail as the last expression of legislative will....

...In such a case, the more narrowly drawn statute operates as an exception to or qualification of the general terms of the more comprehensive statute. Floyd v. Bentley, 496 So.2d 862, 864 (Fla. 2d DCA 1986), review denied, 504 So.2d 767 (Fla. 1987). Thus, the more narrowly drawn section 893.13(1)(e) controls over the more general provisions of section 397.12. This conclusion is further supported by section 893.15, Florida Statutes (1989), which provides in language paralleling section 397.12 that "[a]ny person who violates s. 893.13(1)(f) or (1)(g) relating to possession may, in the discretion of the trial judge, be required to participate in a drug rehabilitation program." (Footnote omitted.) Why would this statute exist if it were not intended to specify which violat...

...gible for referral to a drug treatment program? See State v. Edwards, 456 So.2d 575 (Fla. 2d DCA 1984) (when violations of section 893 transpire, the trial court's authority to exercise its discretion under section 397.12 is limited to violations of section 893.13 relating to possession)....

...Defendant argues that under the habitual felony offender statute, the trial judge must not only make a finding of fact that a prior conviction exists, but also must find that the conviction was for a qualified offense committed within five years, was not for a violation of section 893.13, Florida Statutes (1993), and had not been vacated, or the defendant pardoned....

...He was held in jail for about five hours. When he was released at the end of the day, Dr. Nguyen still did not know why he had been arrested. Dr. Nguyen later learned that he had been arrested for six counts of delivery of a controlled substance in violation of Fla. Stat. § 893.13(1)(a), which makes it a crime to deliver a controlled substance “[e]xcept as authorized by this chapter.” That chapter of the Florida Code authorizes medical doctors to dispense or prescribe controlled substances “in good faith and in the course of his or her professional practice only.” Fla....

...Nguyen had delivered Lortab and Valium, which contain the controlled substances hydrocodone and diazepam, “to a confidential source by use of a written order for said drug[s] not issued in good faith and in the course of his professional practice, contrary to section 893.13(1)(a)(2).” The not in good faith and not in medical practice elements were more specifically 5 described in the affidavit underlying the warrant....

...The bag was retrieved and later introduced into evidence. The marked twenty-dollar bill was found on the dumpster. [2] I. JUDICIAL NOTICE OF THE SCHOOL Mr. McKinney first argues the trial court erred in taking judicial notice that Lakeland Christian School is a school for purposes of section 893.13(1)(c), Florida Statutes (1991)....

...DiGuilio, 491 So.2d 1129 (Fla. 1986). Cf. Rodriguez v. State, 559 So.2d 678 (Fla. 3d DCA 1990) (implying that such polling before an Allen instruction may be per se reversible error). Reversed and remanded. SCHOONOVER, A.C.J., and BLUE, J., concur. NOTES [1] § 893.13(1)(e), Fla....

...The court having then voted to a six-to-six tie, the cause reverts to the original panel. Fla.R.App.P. 9.331(a). We grant rehearing and substitute the following for the opinion dated June 19, 1991: The appellant was arrested for purchasing cocaine within 1000 feet of a school in violation of section 893.13(1)(e), Florida Statutes (1989)....

...itutes manufacture under Chapter 893, Florida Statutes (1989). [1] Certainly, as Judge Letts wrote in the dissent from our original opinion, there is more to this reconstitution *1062 process than "simply adding hot water to instant coffee grounds." Section 893.13 provides several exclusions from its application for police officers acting in the course of their duties, but these exclusions apply only and specifically to the possession and delivery of controlled substances. See § 893.13(5), Fla....

...rms did not apply to such felonies). As section 775.084 itself reflects, the Legislature has exempted certain offenses from the ambit of the habitual felony offender statute, as demonstrated by its partial exclusion of felonies committed pursuant to section 893.13, Florida Statutes (relating to the purchase or the possession of a controlled substance). See § 775.084(1)(a)(3), Fla. Stat. (2001) (specifically exempting those convicted of "purchase or possession of a controlled substance," pursuant to section 893.13, Florida Statutes, from a habitual offender sentence); see also Wilson v....

...ther sentence that is imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later. 3. The felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance....

...offenses” under the ACCA. See 18 U.S.C. § 924(e)(2)(A)(ii). In response to Hill’s objections to the presentence investigation report, the government contended that Hill’s 1999 cocaine sale/delivery conviction, in violation of Florida Statutes section 893.13(1)(a)(1), and his 2008 cocaine trafficking conviction, in violation of Florida Statutes section 893.135(1)(b)(1), were ACCA-qualifying “serious drug offenses.” At sentencing, the district court did not address whether Hill’s prior drug convictions were serious drug offenses....

...Butterworth, Attorney General and Frank J. Ingrassia (Fort Lauderdale), for appellee. Before SCHWARTZ, C.J., and GODERICH and FLETCHER, JJ. SCHWARTZ, Chief Judge. Mondesir was on probation in case number 99-12867 for one count of possession of cocaine with intent to sell in violation of section 893.13(1)(a), Florida Statutes (1999) and one count of sale, manufacture, or delivery of cocaine in violation of section 893.13(1)(a), Florida Statutes (1999), when he committed and was convicted in case number 00-687 of aggravated assault with a firearm in violation of section 784.021(1)(a), Florida Statutes (1999), (count I), kidnaping with a firearm in viola...

substance with intent to sell, in violation of § 893.13 of the Florida Statutes. Based on these convictions

...ine and possession of cocaine and marijuana. We affirm the convictions but remand for resentencing. As her first point defendant contends that in one case she was wrongly convicted of both delivery of cocaine and possession of cocaine, violations of section 893.13(1)(a)(1) and 893.13(1)(e), Florida Statutes (1983). The basis for her contention is that, although the caption of the information charged her with delivery of cocaine and possession of cocaine in violation of section 893.13, the body of the information charged her with delivery of cannabis and possession of cocaine....

...ed substance is involved in the transaction. We answer in the affirmative and reverse the order dismissing the charges below. Michael Baxley was charged with conspiracy to traffic and trafficking in hydrocodone. In order to sustain this charge under section 893.135(1)(c)1, there must be 4 grams or more of the substance or "4 grams or more of any mixture containing any such substance..." But if a tablet contains no more than 15 milligrams of hydrocodone along with other active ingredients which are not controlled substances, then under section 893.03(3)(c)4 such tablet is a SCHEDULE III substance and, under section 893.13(1)(a), its sale, manufacture or delivery (or the possession with such intent) is a third degree felony....

...construe them so as to preserve the force of both without destroying their evident intent). If the number of tablets aggregates 4 grams or more of hydrocodone or a mixture of hydrocodone, then we agree with the State that prosecution is proper under section 893.135....

...Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting by designation.  Case: 12-13526 Date Filed: 11/07/2013 Page: 2 of 14 an aggravated felony. We must decide whether a conviction under Fla. Stat. § 893.13(1)(a)(2) for the possession of cannabis with the intent to sell or deliver is, as a matter of law, a drug trafficking aggravated felony....

...Donawa is a native and citizen of Antigua who entered the United States as a lawful permanent resident on December 26, 1985. On June 8, 2009 he was convicted in Florida state court of two charges: (1) possession of cannabis with intent to sell or deliver in violation of Fla. Stat. § 893.13(1)(a)(2); and (2) possession of drug paraphernalia in violation of Fla....

...Alternatively, and most important for this appeal, he argued that he was at the very least eligible for discretionary cancellation of removal under 8 U.S.C. § 1229b(a). The IJ rejected Mr. Donawa’s arguments, finding him removable and also ineligible for cancellation of removal as a matter of law because Fla. Stat. § 893.13(1)(a)(2) is a drug trafficking crime, and so an aggravated felony....

...1/07/2013 Page: 4 of 14 aggravated felon, and therefore ineligible for discretionary relief. 1 The basis of the BIA’s decision further limits the scope of our review because it rested entirely on his cannabis conviction under Fla. Stat. § 893.13(1)(a)(2)....

...Donawa’s conviction for possessing drug paraphernalia has on his eligibility for cancellation of removal. That issue is therefore not before us on this appeal. Rather, the question before us is simply this: whether Mr. Donawa’s conviction under Fla. Stat. § 893.13(1)(a)(2), as amended by Fla....

...013 Page: 5 of 14 including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). Thus, the question before us can be broken down into two distinct issues: (1) whether a violation of Fla. Stat. § 893.13(1)(a)(2) constitutes a “drug trafficking crime”; and (2) if not, whether it falls into the broader category of “illicit trafficking in a controlled substance.” In resolving each of these questions, courts apply a categorical or modified categorical approach, depending on the statutory scheme....

...as an aggravated felony cannot invoke the modified categorical approach to look beyond the fact of conviction. Id. at 2293. A. This is not the first time we have been called upon to consider whether Fla. Stat. § 893.13(1)(a)(2) qualifies as an aggravated felony....

...knowledge of the nature of the substance in his possession. See United States v. Sanders, 668 F.3d 1298, 1309 (11th Cir. 2012). B. The first—and, given the posture of this case, only—question we consider is whether Fla. Stat. § 893.13(1)(a)(2) is, as a matter of law, a drug trafficking crime as defined in 18 U.S.C....

...The answer is that it is not. 8  Case: 12-13526 Date Filed: 11/07/2013 Page: 9 of 14 Under the categorical approach, it is clear that the “least of the acts criminalized” by Fla. Stat. § 893.13(1)(a)(2) does not necessarily violate 21 U.S.C. § 841(a)(1). A person could be convicted under the Florida statute without any knowledge of the nature of the substance in his possession. That same person could not be convicted of the federal crime. There can be no argument, therefore, that Fla. Stat. § 893.13(1)(a)(2), as amended by Fla....

...The government argues that, while the basic offense does not include a mens rea element with respect to the nature of the substance, the affirmative defense defined by Fla. Stat. § 893.101 effectively creates a separate offense under Fla. Stat. § 893.13(1)(a)(2) that does include that mens rea element....

...nawa raised any affirmative defense during his criminal trial.” The analytical approach the government asks us to apply is therefore not only contrary to Supreme Court precedent, but also unavailing. We therefore conclude that Fla. Stat. § 893.13(1)(a)(2), as amended by Fla. Stat....

...For us to do so on this record would be unwise. The BIA never considered whether Mr. Donawa’s cannabis conviction constituted an illicit trafficking aggravated felony. 5 Rather, it based its decision entirely on what we now know is the erroneous conclusion that Fla. Stat. § 893.13(1)(a)(2) is a drug trafficking aggravated felony....

...an illicit trafficking offense punishable as a felony under federal law. See Moncrieffe, 133 S. Ct. at 1685. III. The BIA erred in finding that, as a matter of law, a violation of Fla. Stat. § 893.13(1)(a)(2), as amended by Fla....

...t officer offense (count III), a violation of section 784.03(1)(b), resisting arrest with violence offense (count IV), a violation of section 843.01, and criminal mischief offense (count V), a violation of section 806.13(1)(a), because these are not section 893.13 enumerated offenses as set forth in section 948.034(2), Florida Statutes (Supp....

...t he was sentenced pursuant to subsection (1)(a), not subsection (2) as asserted by Appellant. [1] The State asserts that unlike subsection (2), there is no requirement in subsection (1)(a) that a defendant have committed an enumerated offense under section 893.13 for sentencing to drug offender probation. Section 948.034, Florida Statutes (Supp. 1998) provides in pertinent part: (1) On or after October 1, 1993, any person who violates s. 893.13(1)(a)1., (1)(c)2., (1)(d)2., (2)(a)1., or (5)(a) may, in the discretion of the trial court, be required to successfully complete a term of probation in lieu of serving a term of imprisonment as required or authorized by s. 775.084, former s. 921.001, or s. 921.002, as follows: (a) If the person has not previously been convicted of violating s. 893.13(1)(a)1., (1)(c)2., (1)(d)2., (2)(a)1., or (5)(a), adjudication may be withheld and the offender may be placed on probation for not less than 18 months, as a condition of which the court shall require the offender to reside at a community residential drug punishment center for 90 days.... (b) If the person has been previously convicted of one felony violation of s. 893.13(1)(a)1., (1)(c)2., (1)(d)2., (2)(a)1., or (5)(a), adjudication may not be withheld and the offender may be placed on probation for not less than 24 months, as a condition of which the court shall require the offender to reside at a community residential drug punishment center for 180 days.... . . . (2) On or after October 1, 1993, any person who violates s. 893.13(1)(a)2., (2)(a)2., (5)(b), or (6)(a) may, in the discretion of the trial court, be required to successfully complete a term of probation in lieu of serving a term of imprisonment as required or authorized by s. 775.084, former s. 921.001, or s. 921.002, as follows: (a) If the person has not previously been convicted of violating s. 893.13(1)(a)2., (2)(a)2., (5)(b), or (6)(a), adjudication may be withheld and the offender shall be placed on probation for not less than 12 months, as a condition of which the court may require the offender to comply with one or more of the following terms and conditions ... (b) If the person has been previously convicted of one felony violation of s. 893.13(1)(a)2., (2)(a)2., (5)(b), or (6)(a), adjudication may not be withheld and the offender may be placed on probation for not less than 18 months, as a condition of which the court shall require the offender to reside at a community residential drug punishment center for 90 days.......

...can be made a part of those forms of supervision. Section 948.01(13), Florida Statutes (2001) specifically provides: If it appears to the court upon a hearing that the defendant is a chronic substance abuser whose criminal conduct is a violation of s. 893.13(2)(a) or (6)(a), the court may either adjudge the defendant guilty or stay and withhold the adjudication of guilt; and, in either case, it may stay and withhold the imposition of sentence and place the defendant on drug offender probation. § 948.10(13), Fla.Statute (2001). This provision appears to restrict its use to violations of section 893.13....

...I agree with the majority that this provision is limited to enumerated crimes under chapter 893, but this is not the provision under which the defendant was sentenced. Thus, while a sentence under 948.01(13) or 948.034 may be restricted to violations of chapter 893.13, I see no reason why a trial court cannot use the more intensive form of supervision defined by section 948.011(4) known as "drug offender probation." I would therefore affirm that part of his sentence....

...nd with directions to discharge her. ALTENBERND, C.J., and STRINGER, J., Concur. NOTES [1] Kutzorik was charged with one count of possession of cannabis with the intent to sell, manufacture, or deliver and one count of manufacture of cannabis, under section 893.13(1)(a), Florida Statutes (2002). She was not charged with misdemeanor possession of marijuana, § 893.13(6)(b), based on the marijuana cigarette butt she gave to the officer....

...be deported under section 241(a) of the Immigration and Nationality Act (“the Act”), 8 U.S.C. § 1227(a) (1999), because, in 1986, he had committed an aggravated felony, the possession of cocaine with intent to distribute, in violation of Fla. Stat. Ann. § 893.13 (West 2000)....

...previously been admitted to the United States as an alien lawfully admitted for permanent residence if . . . since the date of such admission the alien has been convicted of an aggravated felony. . . .” Appellant’s 1986 conviction for violating Fla. Stat. Ann. § 893.13 constituted an aggravated felony under the Uniform Controlled Substance Act....

...oved the issue of appellant’s admission status from the case. Accordingly, the only question to be decided by the immigration judge was whether appellant had been convicted of the offense cited in the order to show cause, a violation of Fla. Stat. § 893.13. 4 to show cause....

possession of a controlled substance in violation of section 893.13(6)(a), Florida Statutes (2010). The trial court

Taylor’s facial constitutional challenge to section 893.13, Florida Statutes (2003), as amended by section

...We note in passing that House Bill 536, another unsuccessful attempt at criminalizing the birth of a drug dependent newborn, never made it out of committee. Id. at 881-882. In Johnson v. State, 578 So.2d 419 (Fla. 5th DCA 1991), the majority concluded the appellant mother was guilty of violating section 893.13(1)(c), Florida Statutes (1989)....

...cifically chapter 415, leads me to conclude in this case that the Legislature expressly chose to treat the problem of drug dependent mothers and newborns as a public health problem and that it considered but rejected imposing criminal sanctions, via section 893.13(1)(c)1....

...Gen., Tallahassee, for appellee. FRANK, Judge. Martha B. Munroe seeks to overcome the trial court's judgment and sentence stemming from a jury verdict in which she was convicted of conspiracy to traffic in an amount of cocaine exceeding 400 grams, conduct violative of section 893.135(4), Florida Statutes (1985)....

...e of $250,000. Munroe's scoresheet calculation produced a presumptive sentence of 3 1/2 to 4 1/2 years. Rule 3.701(d)(9) of the Florida Rules of Criminal Procedure required the trial court to impose a mandatory minimum sentence of fifteen years. See § 893.135(1)(b)(3), Fla....

...g., Atwaters v. State, 495 So.2d 1219 (Fla. 1st DCA 1986), the trial court's bases for departure are invalid. The quantity of cocaine Munroe anticipated acquiring, notwithstanding it did not pass into her possession, is a valid reason for departure. Section 893.135(4), Florida Statutes (1985), provides that the punishment for conspiracy to commit the prohibited act is the same as if the act had been committed....

...State v. Wimberly, 498 So.2d 929, 932 (Fla. 1986). The trial court, however, did not err in rejecting the requested instruction. Munroe was charged in the information *401 with conspiracy to traffic in more than 400 grams of cocaine in violation of section 893.135(4), Florida Statutes (1985). We take as an ingredient in her theory that because a standard jury instruction in effect at the time of her trial, designates the possession of cocaine in violation of section 893.13(1)(e) as a necessarily lesser included offense of trafficking in cocaine, an alleged conspiracy to possess cocaine in an amount constituting "trafficking" required an instruction on the lesser included offense of conspiracy to possess cocaine. [2] Munroe's approach is bottomed upon sections 777.04(3) and 893.13(1)(e), Florida Statutes (1985)....

...The general conspiracy statute, § 777.04(3), creates a distinct crime and is designed to punish "whoever agrees, conspires, combines, or confederates with another person or persons to commit any offense... ." The mere possession of contraband in violation of section 893.13(1)(e), Florida Statutes, exposes to prosecution any person "in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained." On the other hand, the crime of conspiring to "traffic"...

...g with another "who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine as described in s. 893.03(2)(a)4 or any mixture containing cocaine... ." § 893.135(1)(b), Fla. Stat. (1985). A significant difference exists between section 893.135(1)(b) and section 893.13(1)(e)....

...It is readily apparent without reference to graphic examples that a conspiracy to traffic within the state can be achieved without the conspirators ever coming into either actual or constructive possession of the contraband. A conspiracy to violate section 893.13(1)(e), however, is wholly dependent upon some form of possession being within the conspirators' capability....

...After its effective date of July 1, 1981, this schedule will be an authoritative compilation upon which a trial judge should be able to confidently rely. (emphasis supplied) Under the schedule of lesser included offenses, in effect at the time of the appellant's trial, possession of cocaine in violation of section 893.13(1)(e) was designated as a category 1 necessarily lesser included offense of trafficking in cocaine as proscribed by section 893.135(1)(b)....

...[1] Rotenberry v. State, 429 So.2d 378 (Fla. 1st DCA 1983). The Florida Supreme Court reversed, holding: [W]e conclude that the legislature did not intend the charge of trafficking in cocaine to encompass possession and sale as lesser included offenses.... Section 893.135 [trafficking] is sufficiently different from the provisions of section 893.13 to allow multiple punishments at the same trial because the state need not prove a violation of 893.13(1)(a) [sale, manufacture, or delivery], (d) [bringing into the state] and (e) [possession], but only violation of at least one of those provisions....

...f cocaine with the intent to sell, it would appear that the state *874 would have to show prima facie evidence that Johnson: 1. Possessed cocaine; 2. Knew it was cocaine; and 3. Had the intent to sell the cocaine. [1] See Fla.Std.Jury Instr. (Crim.) 893.13(1)(a)....

...uisites of the statute, and we would be required to affirm it but for our resolution of the corpus delicti issue. Because the trial court is directed on remand to enter judgment of conviction for simple possession which is a third-degree felony, see § 893.13(1)(f), rather than the second-degree felony of possession with intent to sell, see § 893.13(1)(a)1, Johnson is required to be resentenced under section 775.084(4)(b)3 [3] to a term of years not exceeding ten, without eligibility for release for five years....

...A small zip-lock baggie containing a green substance was found in appellant's wallet. The substance was later positively identified by authorities as marijuana. Appellant was charged with committing a delinquent act based on the offense of possession of less than twenty grams of marijuana in violation of section 893.13(6)(b), Florida Statutes (1995)....

...Butterworth, Attorney General, Tallahassee, and Aubin Wade Robinson, Assistant Attorney General, West Palm Beach, for appellee. SHAHOOD, Judge. Appellant, Carrington Thomas, appeals from a judgment of conviction and sentence on a charge of sale of cocaine, in violation of section 893.13(1)(a), Florida Statutes (1991)....

...onal peremptory challenges. We affirm in part and reverse in part. On January 12, 1999, appellant was charged in a two-count information with: Count I—sale, manufacture or delivery of a controlled substance within 1000 feet of a school, contrary to section 893.13(1)(c)1, Florida Statutes; and Count II—actual or constructive possession of cocaine contrary to the provisions of section 893.13(6)(a), Florida Statutes....

...The standard of review of a trial court's denial of a motion for judgment of acquittal is whether the trial court abused its discretion. See Lee v. State, 745 So.2d 1036, 1037 (Fla. 1st DCA 1999), citing Terry v. State, 668 So.2d 954 (Fla.1996). The statute applicable, section 893.13(1)(c), Florida Statutes, provides in pertinent part: (c) Except as authorized by this chapter, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substa...

...linquency finding). In State v. Edwards, 581 So.2d 232 (Fla. 4th DCA 1991), the state appealed the trial court's dismissal of a charge that Edwards purchased cocaine within 1,000 feet of the Lauderdale Manor Christian Learning Center in violation of section 893.13(1)(e), Florida Statutes (1989)....

...e pre-K or nursery school level, and one student was learning at the first grade level. The court found that application of the common meaning of "elementary school" to the case revealed that Lauderdale Manor was an elementary school for purposes of section 893.13(1)(e)....

...nd ready determination by resort to sources whose accuracy cannot be questioned. In McKinney v. State, 640 So.2d 1183 (Fla. 2d DCA 1994), the court approved the trial court's judicial notice that Lakeland Christian School is a school for purposes of section 893.13(1)(c), Florida Statutes, finding such notice authorized by section 90.202(11) and (12). The court noted that it had published at least one opinion in which Lakeland Christian School had been the school relied upon for a conviction under section 893.13(1)(c)....

...house confirming a status that no one seriously contests." See id. Appellant in this case concedes the state presented evidence which established that two years before the offense charged, the Academy of Excellence was a school within the meaning of section 893.13(1)(c)....

...Jim Smith, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee. Before HUBBART, C.J., and BARKDULL and NESBITT, JJ. NESBITT, Judge. The defendant appeals her judgment of conviction for possession with intent to sell methaqualudes contrary to Section 893.13(1), Florida Statutes (1979) [Count I]; and actual or constructive possession of methaqualudes contrary to Section 893.13(1)(e), Florida Statutes (1979) [Count II]. As to Count I, which charged the defendant with possession with intent to sell, Section 893.13(1)(a), Florida Statutes (1979) provides in pertinent part: Except as authorized by this chapter and chapter 500, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. [emphasis supplied] Count I did not charge the defendant with the mere sale of methaqualudes. Likewise, in Count II, the defendant was charged pursuant to Section 893.13(1)(e), Florida Statutes (1979), which in pertinent part provides: It is unlawful for any person to be in actual or constructive possession of a controlled substance .......

...orderly conduct charge from one year to a maximum of six months, but may reimpose one year terms for the first degree misdemeanors. DISPOSITIONS VACATED and MATTER REMANDED. COBB and W. SHARP, JJ., concur. NOTES [1] § 877.03, Fla. Stat. (1995). [2] § 893.13(6), Fla.Stat....

...Butterworth, Attorney General, Tallahassee, and Carol Cobourn Asbury, Assistant Attorney General, West Palm Beach, for appellee. EN BANC FARMER, Judge. Because of a conflict in our published decisions on the issue whether a defendant can be separately punished for multiple offenses under sections 893.13 and 893.135, Florida Statutes (1991), we have granted review en banc to harmonize them....

...possession of the same drugs without violating double jeopardy rights. See also Rozier v. State, 620 So.2d 194 (Fla. 1st DCA), rev. denied, 629 So.2d 135 (Fla.1993), in which the court held that double jeopardy concerns prevent conviction under both section 893.13(1), Florida Statutes, possession of controlled substance, and section 951.22, Florida Statutes, which makes unlawful both the introduction into or possession of contraband upon the grounds of a detention facility....

...with intent to sell cocaine and sale of cocaine arising out of a single transaction and involving the same substance); State v. Stenson, 587 So.2d 1144 (Fla.1991). Sale and possession with intent to sell are alternate forms of conduct proscribed by section 893.13(1)(a), Florida Statutes (1995)....

...d distinct if each offense can possibly be committed without committing the other offense." [9] The supreme court followed this approach in McCloud without citing to Baker. Under the McCloud/Baker analysis, possession of a controlled substance under section 893.13(1)(f), Florida Statutes (1991), is "separate" from trafficking in cocaine under section 893.135(1)(b), Florida Statutes (1991) because trafficking by sale can possibly be committed without possession....

...For the purposes of this opinion, however, we assume that the two quantities of cocaine were from a common source. [2] Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). [3] Carawan v. State, 515 So.2d 161 (Fla.1987). [4] Section 893.135(1)(b), Florida Statutes (1991), provides in part that: "Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine, as described in s. 893.03(2)(a)4. or of any mixture containing cocaine, but less than 150 kilograms of cocaine or any such mixture, commits a felony of the first degree, which felony shall be known as `trafficking in cocaine.'" [5] Section 893.13(1)(f), Florida Statutes (1991), provides in part that: "It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pu...

...ting in the course of his professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter." This provision has since been renumbered in the current statutory compilation as section 893.13(6)(a), Florida Statutes (1995)....

...To the extent that it conflicts, we simply certify conflict. [8] "Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, purchase, manufacture, or deliver, or possess with intent to sell, purchase, manufacture, or deliver, a controlled substance." § 893.13(1)(a), Fla. Stat. (1995). "Sale" and "possession with intent to sell" were alternative conduct elements of section 893.13(1)(a) throughout the decade of the 1980's, when cases like State v. Stenson were wending their way to the supreme court. See § 893.13(1)(a), Fla....

...His failure to report and to make an appointment was more the result of miscommunication or confusion than a deliberate act of misconduct. We therefore reverse the order of revocation and remand for the reinstatement of the appellant's community control. Reversed and remanded. PARKER and BLUE, JJ., concur. NOTES [1] § 893.13(1)(a)1., Fla....

...placed twice in jeopardy for the same criminal offense. The district court affirmed both convictions on the authority of Peterson v. State, 645 So.2d 1028 (Fla. 4th DCA 1994), in which the Fourth District held that dual convictions for violation of section 893.13(1)(a), Florida Statutes (1991), and section 893.13(1)(f), Florida Statutes (1991), [3] do not violate double jeopardy....

...For the reasons stated, we answer the certified question in the negative, quash the district court decision, [6] and remand this case to the district court for further proceedings consistent with this opinion. It is so ordered. KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING and ANSTEAD, JJ., concur. NOTES [1] Section 893.13(1)(a), Florida Statutes (1993), provides in relevant part: Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. [2] Section 893.13(6)(a), Florida Statutes (1993), provides in relevant part: It is unlawful for any person to be in actual or constructive possession of a controlled substance... Any person who violates this provision commits a felony of the third degree.... [3] This provision is now codified at section 893.13(6)(a), Florida Statutes (1995)....

...nable hypothesis of innocence, an issue of fact for the jury to decide based on competent substantial evidence). "Proof of possession of a controlled substance may be actual or constructive." Taylor v. State, 13 So.3d 77, 80 (Fla. 1st DCA 2009); see § 893.13(6)(a), Fla....

...State, 501 So.2d 1376 (Fla. 1st DCA 1987). Finally, the court erred in habitualizing Livingston for the possession of cocaine charge which was a concurrent sentence imposed with the sale of cocaine charge. When a defendant is being sentenced for a violation of section 893.13, Florida Statutes (1993), regarding possession or purchase of a controlled substance, the trial court cannot impose a habitual felony offender sentence for the possession conviction....

...ify the patient or withhold such records until a warrant is presented, the order granting the motion to suppress is reversed. *800 The police investigator obtained the records at issue while investigating a suspected "doctor shopping" violation. See § 893.13(7)(a)8., Fla....

...Bell appealed contending the trial court erred in sentencing him on all three counts. We agree and vacate the two sentences for the sale and possession of controlled substances. [2] *320 Anyone who knowingly sells or is knowingly in actual or constructive possession of illegal drugs is guilty of trafficking in illegal drugs. § 893.135(1)(c), Fla. Stat. (1979). Trafficking may be proven either by the sale or by the possession of illegal drugs. Section 893.13(1)(a) prohibits the sale of a controlled substance and section 893.13(1)(e) prohibits the actual or constructive possession of a controlled substance....

...It seems to me, however, that Monroe and Hegstrom are in conflict with the double jeopardy clause of the Fifth Amendment of the United States Constitution. COWART, Judge, concurring in part and dissenting in part: The statutory offense of "trafficking in illegal drugs," § 893.135(1)(c), Fla....

...omer of morphine or opium, including heroin. A charge of a violation of this statutory offense necessarily includes, as lesser included offenses involving a lesser quantity of the same controlled substances, both the statutory offense of possession, § 893.13(1)(e), Fla. Stat. (1979), and the statutory offense of sale, § 893.13(1)(a)1., Fla....

...tutional law, one and "the same offense." Accordingly, I would affirm the conviction and sentence as to the trafficking offense and reverse the convictions, as well as the sentences, relating to both the possession and the sale offenses. NOTES [1] §§ 893.13(1)(a), 893.13(1)(e), 893.135(1)(c), Fla. Stat. (1979). [2] §§ 893.13(1)(a), 893.13(1)(e), Fla....

...The appellant, Kenneth Carle, was charged with one count each of sale or delivery of a controlled substance (diazepam); possession of a controlled substance (diazepam) with intent to sell or deliver; possession of less than twenty grams of cannabis; and possession of drug paraphernalia. See §§ 893.13, 893.13(1)(a), 893.13(6)(b), and 893.147(1), Florida Statutes....

...am with intent to sell was per se reversible error, because, under rule 3.510(b), Florida Rules of Criminal Procedure, simple possession is a necessarily included offense of possession with intent to sell. Where a defendant is charged with violating section 893.13(1)(a) by possessing a controlled substance with intent to sell, a lesser included instruction on simple possession is required to be given if requested....

...But the state maintains that simple possession of diazepam is not a lesser included offense of possession with intent to sell diazepam, because both charges are third-degree felonies and carry the same penalty. The state charged the defendant with possession of diazepam with intent to sell, which violates section 893.13(1)(a)(2), because diazepam is a schedule IV controlled substance under section 893.03(4)(p)....

...Thus, the charged crime was a third-degree, level three felony under the offense severity ranking chart in section 921.0022(3)(c). The same severity level and felony degree attaches to simple possession of a controlled substance, which is a violation of section 893.13(6)(a)....

...The felony for which the defendant is to be sentenced was committed: * * * b. Within 5 years of the date of the conviction of the defendant's last prior felony or other qualified offense.... 3. The felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance .......

...By its terms, subsection (1)(a)3 creates two exemptions from the operation of the habitual offender statute. The first exemption pertains to the nature of the crime for which the enhanced sentence is to be imposed. Section 775.084(1)(a)3 prohibits the imposition of a habitual felony offender sentence for a violation of section 893.13 "relating to the purchase or the possession of a controlled substance." A defendant who is convicted of a drug offense falling within this category is ineligible for a habitual felony offender sentence, regardless of the nature of the prior crimes used to establish the predicate for an enhanced sentence....

...he nature of the offense alone. For example, a defendant convicted of trafficking or sale of cocaine would be eligible for a habitual felony offender sentence, because the statute forbids habitualization only if the subject offense is a violation of section 893.13 "relating to the purchase or the possession of a controlled substance." § 775.084(1)(a)3, Fla....

...Pursuant to a negotiated drug purchase appellant, at one time and one place on August 25, 1988, handed an undercover agent one piece of crack cocaine. [1] As a result he was charged, convicted of, and sentenced for two statutory offenses: possession of a controlled substance (a third degree felony under section 893.13(1)(f), Florida Statutes (1987)), and delivery of a controlled substance (a second degree felony under section 893.13(1)(a)1, Florida Statutes (1987))....

...NSES? If, in the present state of the law, the possession charge in this case in not to be reversed on constitutional double jeopardy grounds, then it should be reversed upon the basis of "statutory construction" and "legislative intent." Basically, section 893.13(1)(f), Florida Statutes, provides that it is unlawful to be in actual or constructive possession of a controlled substance. Sections 893.13(1)(b) and 893.13(1)(g) provide specific penalties for possession of certain amounts of certain controlled substances. Section 893.13(1)(a) provides that it is unlawful to sell, purchase, manufacture or deliver, or to possess with intent to sell, purchase, manufacture or deliver, controlled substances....

...The point is not whether or not A's act constitutes the exercise of such dominion and control as constitutes possession; the point is that if one cannot theorize that A is in possession then one cannot conceptualize how A can accomplish a delivery of possession or a sale. [4] Query: Why does section 893.13(1)(a) provide punishment more severe than for mere possession for one who purchases from one who sells but not for one who "receives" from one who delivers? [5] Lesser in the correct theoretical sense that all the elements of the crime...

...Gen., West Palm Beach, for appellant. Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellee. PER CURIAM. The state charged Appellee/Defendant/Mary Roland (Roland) by information with violating section 893.13(1)(e), Florida Statutes, for having purchased cocaine within 1000 feet of the Morris Learning Center, a kindergarten/preschool. The court dismissed the information, stating that the "Morris Learning Facility is not a school within the meaning of the statute." The state appeals the trial court's dismissal of the information. We affirm. Section 893.13(1)(e) states, in pertinent part: Except as authorized by this chapter, it is unlawful for any person to sell, purchase, manufacture, or deliver, or to possess with the intent to sell, purchase, manufacture, or deliver, a controlled sub...

...Hence, where a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned. Thus, by excluding kindergartens and preschools from section 893.13(1)(e), the legislature failed to enact a statute that applies to kindergartens and preschools....

...including the first six or the first eight grades." Therefore, in light of the fact that penal statutes must be construed strictly in favor of the accused, State v. Jackson, 526 So.2d 58 (Fla. 1988); section 775.021(1), Florida Statutes, we hold that section 893.13(1)(e) does not apply to kindergartens or preschools....

...Sinardi, Tampa, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee. CAMPBELL, Judge. Appellant was found guilty by a jury of delivery of cocaine within 1,000 feet of a school (§ 893.13(1)(e), Fla. Stat. (1991)), delivery of cocaine within 200 feet of a public housing facility (§ 893.13(1)(i), Fla. Stat. (1991)), and possession of cocaine (§ 893.13(1)(f), Fla. Stat. (1991)). He challenges his convictions on evidentiary and constitutional grounds. We find no merit in appellant's evidentiary argument, but agree with him that his conviction under section 893.13(1)(i) must be vacated since the Florida Supreme Court has held that statute unconstitutionally vague....

...Since the testimony was not offered for its truth, it is not hearsay, and cannot violated the Bruton rule. We, accordingly, affirm appellant's convictions for delivery of cocaine within 1,000 feet of a school and possession of cocaine. We agree with appellant as to his second point, however. The Supreme Court has found section 893.13(1)(i) unconstitutionally void for vagueness....

...band with the intent to sell or deliver it. And, I also think, the circumstantial evidence in this case was sufficiently substantial to support the jury's conclusion that Gamble was guilty of possession with intent to sell or deliver contraband. [1] § 893.13(1)(a), Fla....

...h on his person. [12] In my view, these facts provide substantial, circumstantial evidence to sustain the jury's verdict that Gamble possessed the forty rocks of cocaine with intent to sell or distribute them. This case should be affirmed. NOTES [1] § 893.13(1)(e), Fla. Stat. (1991). [2] § 893.13(1)(f), Fla. Stat. (1991). [3] § 893.13(1)(a), Fla....

...1976); Jefferson v. State, 549 So.2d 222 (Fla. 1st DCA 1989); see also Evans v. State, 543 So.2d 326 (Fla. 3d DCA 1989). This is the inevitable result under the statute which, of course, makes no qualification as to the amount of controlled substance required. § 893.13(1)(f), Fla....

...n an instrument which has an ordinary use other than for the consumption of cocaine. Indeed, in the second paragraph of the majority opinion it is held: [T]he statute ... makes no qualification as to the amount of controlled substance required. Sec. 893.13(1)(f), Fla....

...felony possession of cocaine. To avoid the unconscionable reaches of this rule, the majority then does what it says it may not do, that is, indulge in an act of judicial statutory amendment. The majority does so by holding that one does not violate section 893.13(1)(f) in possessing a trace amount of cocaine where the trace amount is found on an implement, unless the implement is one which is used only for drugs....

...o prove charged offense, evidence lacks conclusive nature to support conviction). By a fair reading of Eckroth and Reynolds, two Florida supreme court cases, a business executive whose currency is tainted with cocaine dust is not guilty of violating section 893.13(1)(f), absent other proof of knowledge of the presence of the illicit substance and that the amount is usable....

...the double jeopardy clause of the Fifth Amendment to the United States Constitution. Thomas also contends that he cannot be convicted of two separate possessions of cocaine even though he sold it at different intervals. His argument is that because section 893.13(1)(f), Florida Statutes, makes it a third degree felony to possess any amount of a controlled substance, the state could not apportion the cocaine possessed by the defendant into two separate possession charges....

...The defendant was convicted on Counts I and III of sale of cocaine, a second degree felony, § 893.03(2)(a)4, Florida Statutes, punishable by up to 15 years imprisonment. § 775.082(3)(c), Fla. Stat. Counts II *1124 and IV were possession convictions, and each was a third degree felony, § 893.13(1)(f), Fla....

...The habitualization order, however, reflects a single sentence of 10 years imprisonment, possibly a clerical error. Section 775.084(1)(a)3, Florida Statutes (1993), does not permit habitualization where the felony for which the defendant is to be sentenced is a violation of section 893.13, relating to the purchase or possession of a controlled substance....

...This case is factually indistinguishable from McCloud, because the prosecution established McMullen was in possession of cocaine with the intent to sell it, and that he sold some to a confidential informant. AFFIRMED. THOMPSON and MONACO, JJ., concur. NOTES [1] § 893.13(1)(e)1., Fla. Stat. [2] § 893.13(1)(e)1., Fla....

...verages in his possession. Therefore, the court was not obligated to orally pronounce that portion of the condition of probation. There is no blanket proscription on the possession of controlled substances in the juvenile community control statutes. Section 893.13(6)(a), Florida Statutes (1995), makes it unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice. To the extent that this condition bans the possession of a controlled substance obtained in compliance with section 893.13(6)(a), it is stricken....

...State, 787 So.2d 259 (Fla. 2d DCA 2001). Appellant alleged he was tried and found guilty of two counts of sale of cocaine and two counts of possession of (the same) cocaine with intent to sell or deliver, all of which offenses are second-degree felonies. § 893.13(1)(a)1 & § 893.03(2)(a)4, Fla....

...In this case, Robinson claims his violations of probation were only technical. However, he admitted to the use of marijuana and to testing positive for marijuana in connection with his probation revocation. This is an admission of a criminal offense. See § 893.13, Fla....

...rofessional practice. Cilento v. State, 377 So.2d 663 (Fla. 1979). We do not find that the facts alleged show violation of the statute. This case is therefore not controlled by Migliore; the issue before us is not whether a physician in violation of section 893.13 is liable for the injuries of a third party....

...For example, in United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), a physician was convicted of prescribing methadone in a manner which exceeded the bounds of his practice, a violation of the federal equivalent to sections 893.05 and 893.13 of the Florida Statutes....

...BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur. NOTES [1] In none of the federal cases we have examined has a failure to conduct a physical examination, alone, been the basis for finding a physician criminally liable under 21 U.S.C. § 841, the functional equivalent to § 893.13, Fla....

...ndercover visit, and that prescriptions during one three-month period accounted for almost half the drug store's volume for controlled drug sales in that period. [2] We do not address the question of whether circumstances constituting a violation of section 893.13 would suffice to allow liability to be imposed on a physician for injuries suffered by third parties....

...hassee, for Appellant. Robert A. Butterworth, Attorney General; James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. The defendant, Gabriel Fisher, was convicted on two counts of sale of cocaine, in violation of section 893.13(1)(a)1, Florida Statutes....

...We deny the state's petition for writ of certiorari and adopt the following well-reasoned opinion of the trial court: Defendant is charged by an information which alleges that she did "knowingly sell, deliver, or bring into this State, or was knowingly in actual or constructive possession of 400 grams or more of cocaine." Section 893.135(1)(b), Florida Statutes, provides that "any person who knowingly sells, ..., delivers, or brings into this State, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine" is guilty of trafficking in cocaine....

...The problem arises from the fact that the evidence will tend to show that her intentions were to traffic in marijuana and her belief was that the contraband would be marijuana instead of cocaine. If this were a case of simple delivery or possession of a controlled substance under § 893.13, State v....

...Obviously, intent and knowledge are elements that the State must prove and the absence of which can be a defense. The State, however, contends that the only intent and knowledge required are to traffic in controlled substances and that the specific contraband is immaterial except to set the punishment. *412 Again, if § 893.13 were involved, that argument could better be made because the offense is described in each subsection as being in the actual or constructive possession, etc. of "a controlled substance." Section 893.135, however, has five subsections each of which names a specific drug which must be possessed, etc., to constitute the offense. Had the Legislature intended for there to be just one crime with varying penalties according to the drug involved, it could easily have followed the format of § 893.13....

...rijuana is harmless and no moral wrong is committed in dealing with it although the same person may not be willing to deal in cocaine or morphine or opium or phencyclidine or methaqualone because of a moral belief that these drugs are harmful. Under § 893.13, which, as has been discussed, does not have a knowledge requirement, the Third District has ruled that a charge of sale of heroin could not be proved by the evidence of a sale of morphine. Jimenez v. State, 231 So.2d 26 (Fla. 3d DCA 1970). Under § 893.135(1)(b) which does have a knowledge requirement, it would follow that proof of trafficking in cocaine would not support a charge of trafficking in marijuana or vice versa....

...The trial court concluded that the arresting officers did not have a founded suspicion of criminal activity and the search was therefore illegal. We reverse, concluding that the search was legal because Wynn abandoned his truck. Wynn was charged with trafficking in cocaine, pursuant to section 893.135(1)(b)1, Florida Statutes (1991) and possession of cocaine with intent to sell, purchase, manufacture or deliver within 200 feet of a public housing facility, pursuant to section 893.13(1)(i), Florida Statutes (1991)....

...Once the vehicle was abandoned, Wynn no longer had an expectation of privacy in the vehicle. Reversed and remanded. RYDER, A.C.J., and BLUE, J., concur. NOTES [1] This court, in State v. Thomas, 616 So.2d 1198 (Fla. 2d DCA 1993), concluded that the statutory phrase, "public housing facility" utilized in section 893.13(1)(i) was unconstitutionally vague.

...The appellant was charged by information with two counts which alleged that on two different dates appellant did "unlawfully and feloniously sell or deliver to another person, cannabis, a controlled substance commonly known as marijuana, in violation of Florida Statute 893.13(1)(a)(2); third degree felony" (emphasis supplied). Cannabis is a controlled substance named in section 893.03(1)(c), Florida Statutes (1981). Section 893.13(1)(a)(2) makes it a third degree felony for "any person to sell ... or deliver ... a controlled substance named or described in s. 893.03(1)(c)... ." However, section 893.13(1)(f) provides that the delivery without consideration of not more than 20 grams of marijuana is a misdemeanor of the first degree....

seen this activity a year before this offense. Section 893.13(l)(e), Florida Statutes (2007), provides that

...SCHEB, Acting Chief Judge. The state charged the defendant, Garry Vinyard, with purchase of cocaine, as a principal in the first degree. [1] After the jury returned a verdict of attempted purchase of cocaine, the court adjudicated him guilty pursuant to section 893.13, sentenced him to twelve months' community control followed by twelve months' probation and revoked his driver's license for two years. [2] We have examined the six points the defendant raises on appeal, and find merit in two. These relate to his sentence. First, the defendant argues the court erred in adjudicating him guilty of attempted purchase of cocaine in violation of section 893.13(1)(a), and in suspending his driver's license pursuant to section 322.055(1). Since the language in section 893.13(1)(a) proscribing purchase does not contemplate the crime of attempted purchase, the court erred in entering the defendant's conviction solely under that statute....

...ines the term buy as "to acquire by sacrifice, exchange, or trade"). The conviction and judgment should be clarified to reflect the defendant was convicted under the general attempt statute, section 777.04(1), Florida Statutes (1987), in addition to section 893.13....

...To the contrary, that statute provides "the department, at the direction of the sentencing court, shall revoke the driver's license or driving privilege of any person found guilty of or adjudicated delinquent for any violation of chapter 893.03(1) or (2)." Since the defendant violated both sections 893.13 and 777.04(1), the court may properly direct the Department of Highway Safety to revoke his driver's license....

...statutorily authorized, it should be stricken. See Williams v. State, 542 So.2d 479 (Fla. 2d DCA 1989). We affirm the defendant's conviction. We direct the court to correct the judgment to reflect the defendant was adjudicated guilty under sections 893.13(1)(a) and 777.04(1)....

...We vacate that portion of the sentence dealing with the suspension of the defendant's driver's license and remand for further consideration. We strike community control condition 12. Otherwise, we affirm the defendant's sentence. Remanded with directions. THREADGILL and ALTENBERND, JJ., concur. NOTES [1] Section 893.13, Florida Statutes (1987 as amended by 1988 Supp.), reads: (1)(a) Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, purchase, manufacture, or deliver, or possess with intent to sell, purchase, manufacture, or deliver, a controlled substance....

...The jury found her guilty of the lesser included offense of possession of cocaine, and guilty of possession of marijuana, as charged. Merits Thomas maintains that the state failed to establish that she had constructive possession of the marijuana pursuant to Florida Statutes, section 893.13(6)(b) (1997)....

...[2] That section provides, in pertinent part, If the offense is the possession of not more than 20 grams of cannabis, as defined in this chapter, the person commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.... § 893.13(6)(b), Fla....

...KOGAN, C.J., and OVERTON, HARDING and ANSTEAD, JJ., concur. *382 WELLS, J., dissents with an opinion. PARIENTE, J., recused. WELLS, Justice, dissenting. Petitioner was arrested for possessing more than twenty-eight grams of cocaine and ultimately convicted of violating sections 893.135(1)(b)1 and 893.13(1)(a), Florida Statutes (1995)....

...State, 698 So.2d 252 (Fla.1997), are dispositive. I dissent. Neither Gibbs nor Paccione control here. The instant case deals with two alternative conduct statutes, whereas in both Gibbs and Paccione one of the statutes for which the defendant was convicted was section 893.13(6)(a), Florida Statutes (1993), a statute which only punishes simple possession of a controlled substance....

...This case is a stronger case than Gibbs for rejecting a double jeopardy challenge because the second offense here is not simple possession as in Gibbs but possession with intent to sell/deliver. There are several ways to analyze the differences between these crimes. Pursuant to section 893.135(1)(b), Florida Statutes (1995), a person traffics in cocaine either by knowingly selling, delivering or bringing into this state 28 grams or more of cocaine or by being in actual or constructive possession of 28 grams or more of cocaine....

...ssion of the cocaine, or, alternatively, without actually intending to sell the cocaine. See Gibbs [v. State ], 676 So.2d [1001] at 1008 [Fla. 4th DCA 1996] (Gross, J., concurring).... For the crime of possession with intent to sell/deliver cocaine, section 893.13(1)(a), an essential element is proof of specific scienter; i.e., intent to sell or deliver the cocaine....

...leads to the conclusion that there is no double jeopardy violation. Moreover, there is no indication that the legislature intended anything other than dual convictions in a situation such as the one before us. Accordingly, I would affirm. NOTES [1] Section 893.135 prohibits the possession of 28 grams or more of cocaine and provides in relevant part: Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine ... but less than 150 kilograms of cocaine ... commits a felony of the first degree, which felony shall be known as "trafficking in cocaine." § 893.135(1)(b)(1), Fla. Stat. (1995). [2] Section 893.13 prohibits the possession of a controlled substance for specific purposes and provides in relevant part: Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. § 893.13(1)(a), Fla....

...Butterworth, Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee. COBB, J. David Wallace appeals his conviction of sale and delivery of cocaine within 1,000 feet of a place of worship pursuant to sections 893.13(1)(e)1, Florida Statutes (2000), which provides: (e) Except as authorized by this chapter, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance not auth...

...4th DCA 1999) wherein the officer testified there was a "regular church" which conducted nightly services as well as Sunday daytime masses. REVERSED AND REMANDED for entry of judgment and sentence for the necessarily lesser included offense of sale of a controlled substance pursuant to section 893.13(1)(a)1, Florida Statutes (2000)....

...*988 Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee. VAN NORTWICK, J. Charles Williams appeals his judgment of conviction and sentence for sale or delivery of cocaine within 1000 feet of a child care facility, a violation of section 893.13(1)(c)1, Florida Statutes (2000)....

...With regard to the conviction, appellant has raised several issues, but only one merits discussion. At trial, appellant moved for a judgment of acquittal, arguing that the sign located in front of the child care facility in question was insufficient under the applicable statute to warrant a conviction. Section 893.13(1)(c)1 provides that it is unlawful to sell, manufacture, or deliver a controlled substance in, on or within 1000 feet of the real property comprising a child care facility....

...The jury returned a verdict finding appellant guilty of trafficking in cocaine and possession of drug paraphernalia. Appellant has not appealed the latter conviction. Appellant was convicted for trafficking more than 200 grams, but less than 400 grams, of cocaine in violation of section 893.135(1)(b)1.b., Florida Statutes (2002)....

...The jury was instructed on the lesser offense of simple possession. Therefore, the judgment of conviction for trafficking is reversed, the sentence therefore is vacated, and the cause is remanded for entry of a judgment of conviction for possession of cocaine, contrary to section 893.13(6)(a), Florida Statutes, and for resentencing using a corrected scoresheet....

...records from pharmacies. We find the reasoning in Carter persuasive and thus reverse the order granting Tamulonis's motion to suppress. Tamulonis was charged with three counts of obtaining or attempting to obtain a controlled substance by fraud. See § 893.13(7)(a)(9), Florida Statutes (2007 & 2008)....

...Gen., Tampa, for appellee. *595 PER CURIAM. The appellant, Deldesondro Callaway, challenges the trial court's judgments and sentences imposed upon him after a jury found him guilty of sale of cocaine and possession of cocaine with intent to sell or deliver, in violation of section 893.13(1), Florida Statutes (1991)....

...Gen., West Palm Beach, for appellant. No appearance for appellee. PER CURIAM. The state appeals appellee's sentence to probation. He plead guilty to purchasing cocaine within 1,000 feet of a school which called for a three year mandatory minimum sentence. § 893.13(1)(3)1, Fla....

...Rollins next argues that his habitual offender sentence imposed pursuant to section 775.084(1)(a), Florida Statutes (1995) was inappropriate where one of the predicate felony convictions relied upon to support the enhanced sentence was a conviction for possession *825 of cocaine pursuant to section 893.13(6)(a), Florida Statutes (1995). Essentially, Rollins maintains that the habitual offender statute precludes habitualization where one of the two predicate convictions is a violation of section 893.13....

...The defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses; * * * * * * 3. The felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance.... By the plain language of this statute, a defendant may not be sentenced as a habitual felony offender if both the felony for which the defendant is to be sentenced and one of the two prior predicate felony convictions involves a violation of section 893.13 relating to the purchase or possession of a controlled substance. See Gagger v. State, 699 So.2d 347, 347 (Fla. 5th DCA 1997); Hayes v. State, 677 So.2d 304, 305 (Fla. 1st DCA 1996). In this case, Rollins was convicted of aggravated battery with a deadly weapon and not a violation of section 893.13. He had two prior felony convictions, one of which was for possession of a controlled substance as prescribed by section 893.13(6)(a); the other was for burglary of a structure and grand theft second degree. Thus, because one of these two predicate convictions, and the conviction in this case, are not violations of section 893.13, Rollins' enhanced sentence was not error....

...Robert A. Butterworth, Atty. Gen. and Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee. BARFIELD, Judge. Larry Wheeler appealed his judgment and sentence for sale of cocaine and possession of cocaine with intent to sell, each a violation of section 893.13(1)(a), Florida Statutes (1985), asserting that multiple punishments for both crimes, arising out of a single transaction involving the same controlled substance, violated double jeopardy principles....

...in Gordon v. State, 528 So.2d 910 (Fla. 2d DCA 1988), approved, State v. Smith, 547 So.2d 613 (Fla. 1989). [1] While we reach the same conclusion as Gordon, we reject its rationale and hold that the legislative intent, as evinced by the structure of section 893.13(1)(a), was not to punish for both possession of a controlled substance with the intent to sell it and the sale of the same controlled substance in the same transaction....

...islative intent, but does not affect analysis of the legislative intent as evidenced by the statute itself. Wheeler was convicted and sentenced separately for possession of cocaine with intent to sell and sale of cocaine, both offenses prohibited by section 893.13(1)(a), Florida Statutes. The structure of section 893.13(1)(a) indicates that sale and possession with intent to sell are alternative ways of violating this particular subsection of the statute and that the legislature intended by this subsection to punish either the completed sale, manufact...

...iolation of the subsection. It is logical to assume that if a contrary result had been intended, the legislature would have proscribed each offense in separate subsections of the statute, as it did with simple possession of a controlled substance in section 893.13(1)(e)....

...g the Blockburger test of separate offenses and the Carawan rule of lenity becomes unnecessary. The 1988 amendment to section 775.021, therefore, has no effect on this court's determination that the legislature intended to punish as one violation of section 893.13(1)(a) the sale, manufacture, or delivery of an illegal drug where the defendant possessed the same drug with the intent to sell, manufacture, or deliver it....

...simultaneously from a single drug transaction and involved the same drug. Fletcher v. State, 428 So.2d 667 (Fla. 1st DCA 1982), review denied, 430 So.2d 452 (Fla. 1983). The court initially reasoned that Fletcher committed two offenses prohibited by section 893.13(1)(a) and thus did not violate "two or more criminal statutes" as required by the pre-1983 section 775.021(4) for multiple punishment....

...[7] However, the Blockburger analysis in Fletcher is at odds with the Florida Supreme Court's holding in Smith v. State, 430 So.2d 448 (Fla. 1983). Applying section 775.021(4) and Blockburger, the court in Smith determined that possession of a controlled substance in violation of section 893.13(1)(e), Florida Statutes (1979), [8] was not an offense included in the sale of a controlled substance proscribed by section 893.13(1)(a)....

...ire proof of sale, the two are separate offenses because each requires proof of an element which the other does not. However, in Gordon v. State , the Second District Court of Appeal receded from this holding in Dukes. In Gordon, the court held that section 893.13(1)(a) lacked any statement of legislative intent concerning whether the two offenses should be punished separately or as one crime, and rejected the argument that inclusion of both offenses in the same subsection of the statute reflects clear legislative intent that the offenses are the same....

...separate convictions and sentences for possession of a controlled substance with the intent to sell and sale of the same controlled substance, arising out of the same criminal transaction, when both offenses appear to be alternate ways of violating section 893.13(1)(a), Florida Statutes (1985)? Whether the supreme court's approval of Gordon v....

...2nd DCA 1988), the Second District reached *693 the same conclusion as I have. There, the court was dealing with the same offenses as are involved in the instant case, to wit: sale of cocaine, and possession with intent to sell cocaine. [2] The mere placement, therefore, of the two crimes within the statute's [Section 893.13(1)(a)] proscription will not provide the necessary clear intent language....

...ear schools. Simple possession is now proscribed by subsection (1)(f) and possession or delivery of not more than 20 grams of cannabis by (1)(g). [9] The Florida Standard Jury Instructions in Criminal Cases (2d Ed., Supp. 1987), defines "sell" under section 893.13(1)(a): "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." The schedule of lesser included offenses contains no "category 1" lesser included offense when the primary offense is the violation of section 893.13(1)(a). The only "category 2" lesser offenses are attempts, except when delivery is charged; simple possession, section 893.13(1)(e), if possession is charged; and possession or delivery without consideration of not more than 20 grams of cannabis, section 893.13(1)(f), if possession or delivery of cannabis is charged....

...caine and one count of possession of cocaine. These cases were consolidated for a jury trial, and McGlorthon was convicted on all counts as charged. McGlorthon's appeal concerns only his two convictions for possession of cocaine, each a violation of section 893.13(6)(a), Florida Statutes (2003), which provides that "[i]t is unlawful for any person to be in actual or constructive possession of a controlled substance." McGlorthon contends that he contemporaneously possessed one quantity of cocaine...

...Before SCHWARTZ, C.J., [*] and DANIEL S. PEARSON and JORGENSON, JJ. PER CURIAM. This is a consolidated appeal by two defendants from their respective adjudications and sentences imposed after a jury found them guilty of unlawfully possessing marijuana in violation of Section 893.13(1)(e), Florida Statutes (1983)....

...n actual or constructive possession of the subject contraband, and that, accordingly, their convictions should be ordered reduced from the present third-degree felony to a first-degree misdemeanor, to-wit: attempted unlawful possession of marijuana, § 893.13(1)(e), Fla....

...n 397.12, Florida Statutes (1981), for conspiracy to traffic in heroin and trafficking in heroin. We reverse and remand. The state filed a four-count information charging Edwards with conspiracy to traffic in heroin, in violation of sections 777.04, 893.135(1)(c)1 and 777.011, Florida Statutes (1981); trafficking in heroin, in violation of sections 893.135(1)(c)1 and 777.011; delivery of heroin, in violation of section 893.13(1)(a)1; and possession of heroin, in violation of section 893.13(1)(e)....

...those violations of chapter 893 which relate to possession. The foregoing emphasized wording of section 397.011(2) is entirely consistent with section 893.15, Florida Statutes (1981), which states in full: Rehabilitation. — Any person who violates s. 893.13(1)(e) or (1)(f) relating to possession may, in the discretion of the trial judge, be required to participate in a drug rehabilitation program approved or regulated by the Department of Health and Rehabilitative Services pursuant to the prov...

...when violations of section 893 transpire, a trial court's authority to exercise its discretion under section 397.12 is not just generally limited to violations of chapter 893 relating to possession, but is specifically limited to violations of *579 section 893.13(1)(e) or (1)(f) relating to possession....

...It is not the objective and intent of chapter 397 that one who is accused of committing such offenses, which concern drug trafficking, not drug abuse, be treated under section 397.12. Moreover, these offenses cannot be treated under section 397.12 because they involve violations of sections 893.13(1)(a)1 and 893.135(1)(c)1, not section 893.13(1)(e) or (1)(f) relating to possession....

...nolo contendere as to all counts. REVERSED and REMANDED. RYDER, C.J., concurs. GRIMES, J., concurs specially. GRIMES, Judge, concurring specially. Appellant's convictions of conspiracy to traffic in heroin and trafficking in heroin are controlled by section 893.135(1)(c)1, Florida Statutes (1981), which requires a minimum mandatory sentence of three years and a fine of $50,000. This is in conflict with section 397.12 (1981), which authorizes a person convicted of violating any provision of chapter 893 to be placed in the DACCO program in lieu of sentencing. Section 893.135 is the later enacted statute which reflects a legislative intent to strengthen the penalties for large scale drug trafficking. [1] As explained in Judge Hobson's opinion, section 397.12 seems to be directed at drug users rather than drug traffickers. Therefore, I am convinced that drug traffickers convicted under section 893.135 may not be referred to the DACCO program in lieu of receiving a minimum mandatory sentence....

...respect address or criminalize the use of a firearm while committing a criminal offense. Second, defendant was convicted of conspiracy to possess with intent to distribute cocaine pursuant to 21 U.S.C. §§ 841(a) and 846. This crime is parallel to section 893.13, Florida Statutes, which provides that "it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance." § 893.13(1)(a)(1), Fla....

...Because defendant was convicted of conspiracy, the offense becomes a third degree felony and scores at 10 points. See § 777.04(e), Fla. Stat. (1993). Defendant argues that even though he possessed approximately 20 kilos of cocaine in connection with this charge, section 893.135(1)(b)(5), Florida Statutes (1993) (which provides that any person who conspires to traffic cocaine in the amount possessed by defendant commits a felony in the first degree), does not apply because under federal law, the quantity of drugs does not constitute an element of the crime....

that his conviction for violating Florida Statute § 893.13(l)(a)(l) constituted an aggravated felony and

...Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee. NORTHCUTT, Chief Judge. Mark O'Hara was convicted of trafficking in hydrocodone based on his possession of 58 Vicodin tablets containing that substance. See § 893.135(1)(c)(1)(c), Fla....

...The State objected to the instruction and the court denied the request. We hold that O'Hara was entitled to the instruction, and, accordingly, we reverse his conviction and remand for a new trial. O'Hara contends that section 499.03(1), Florida Statutes (2004), and section 893.13(6) each provide a "prescription defense" to a charge of trafficking by possession under the drug trafficking statute, section 893.135....

...t-forming, toxic, harmful, . . . or legend drug as defined in s. 499.003(25), unless the possession of the drug has been obtained by a valid prescription of a practitioner licensed by law to prescribe the drug. *841 § 499.03(1) (emphasis supplied). Section 893.13(6), the criminal statute that prohibits and penalizes simple drug possession, contains a similar provision: It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice . . . . § 893.13(6)(a) (emphasis supplied). The drug trafficking statute, section 893.135, contains no express language setting forth a prescription defense....

...However, its proscriptions against the sale, delivery, or possession of trafficking amounts of certain drugs are prefaced by the following qualification: " Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13: . . ." § 893.135(1) (emphasis supplied). O'Hara argues that the emphasized language makes the above-quoted prescription defenses available to the defendant in a trafficking prosecution under section 893.135. The State maintains that section 499.03(1) is simply inapplicable and does not provide a defense to a charge of trafficking by possession. It acknowledges that section 893.13(6)(a) provides a prescription defense to possession of controlled substances, but it contends that the defense does not apply to a defendant who is charged with possessing a trafficking amount....

...Therefore, hydrocodone is a "legend drug" for purposes of section 499.03(1). As such, the statute does not prohibit its possession if "possession of the drug has been obtained by a valid prescription of a practitioner licensed by law to prescribe the drug." Because the first subsection of the trafficking statute, section 893.135(1), excepts acts authorized under chapter 499 from the ambit of the described crimes, the authorized possession of hydrocodone under section 499.03(1) could provide a defense to O'Hara's trafficking charge....

...It would appear, then, that section 499.03(1) authorizes a person to possess a legend drug, including hydrocodone, if he obtained the drug by a valid prescription. Further, that authorization has been expressly incorporated in the trafficking statute by the introductory sentence of section 893.135(1). But our inquiry does not end there. As we have mentioned, there is also a prescription defense contained in the drug possession statute, section 893.13(6)....

...It provides a defense to the charge of simple possession of "controlled substances," a category that includes hydrocodone but that is less inclusive than the "legend drugs" category that is the subject of section 499.03. Under one principle of statutory construction, it might be argued that the more specific statute, section 893.13, controls over the more general one, section 499.03....

...Cregan, 908 So.2d 387, 391 (Fla.2005); McKendry v. State, 641 So.2d 45, 46 (Fla.1994) ("[A] specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms."). Consequently, we must also address the applicability of the section 893.13 prescription defense to a trafficking charge under section 893.135. For this discussion, we return to the introductory sentence of the trafficking statute, section 893.135(1). Recall that *843 O'Hara points to the first phrase of that sentence in support of his claim that there is a section 893.13(6)(a) prescription defense to a charge of trafficking by possession. But the State maintains that the second phrase of the sentence wholly precludes any reliance on section 893.13 in trafficking cases: "Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13: . . ." § 893.135(1) (emphasis supplied). This, according to the State, is "plain language" that means none of the provisions of section 893.13 can ever apply to the crimes delineated in section 893.135....

...Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992). Whenever possible, we must give full force to all statutory provisions. Doe v. Dep't of Health, 948 So.2d 803, 808 (Fla. 2d DCA 2006). Applying these principles here, it is obvious that sections 893.13 and 893.135 are part of a statutory scheme addressing the possession of controlled substances, with the latter statute imposing more severe penalties for possessing larger, "trafficking," amounts of the drugs. And, indeed, the legislative history of the phrase at issue here—"and notwithstanding the provisions of s. 893.13"—informs us that its very purpose was to harmonize the two statutes. The language was added to section 893.135 in 1980....

...Rather, the bills' initial purpose simply was to amend the trafficking statute to include the drugs methaqualone and phencyclidine within its scope. But a Senate staff analysis pointed out the following problem: This bill, as drafted, may create a duplication of penalties unless s. 893.13 is amended to except those quantities of Methaqualone and Phencyclidine to be covered by the trafficking section. Such an exception was made for large quantities of marijuana when the existing trafficking statute was created. However, certain other drugs covered by the trafficking statute, such as cocaine, were not excepted from s. 893.13, and thus, violations involving large quantities of these drugs may be prosecuted under either section....

...Dep't of State, State Archives, Tallahassee, Fla.) (emphases supplied). The final bill, Committee Substitute for House Bill 263, addressed the problem discussed in the Senate staff analysis, but it took a different approach. Instead of adding new exceptions *844 to section 893.13, as proposed in the analysis, the bill deleted the existing exceptions in that statute and amended the introductory sentence of section 893.135 to include the language on which the State now relies....

...80-70, §§ 1, 2, at 232-35; CS for SB 296 Staff Analysis. This history discloses that the new language was placed in the statute to address a narrow concern: that offenders who possessed trafficking amounts of certain drugs might be prosecuted instead for simple possession under section 893.13, and thus they would be permitted to escape the more severe penalties mandated under the trafficking statute. Nothing in the enactment itself or in the history of the bills that resulted in the new law suggests that the Legislature intended or even contemplated the expansive reading advocated by the State, such that the exceptions or defenses in section 893.13 having nothing to do with penalties also would be excluded from the trafficking statute. Indeed, the effect of the State's interpretation of the trafficking statute would extend well beyond the prescription defense at issue here. Both section 499.03(1) and section 893.13(9) shield certain persons or entities who possess and deliver drugs, such as pharmacists, medical practitioners, hospitals, law enforcement officers, and the like, from the criminal prohibitions and penalties contained in the statutes. But in some instances the section 893.13 exemptions are broader than the ones contained in section 499.03. For example, section 499.03(1)(e) exempts "[a]n officer or employee of a federal, state, or local government," whereas section 893.13(9)(e) excludes "[o]fficers or employees of state, federal, or local governments acting in their official capacity only, or informers acting under their jurisdiction. " (Emphasis supplied.) If, as the State maintains, no part of section 893.13 applies to the trafficking law, informants acting under the orders of law enforcement could be prosecuted for trafficking....

...a man who possessed hydrocodone that he obtained by prescription. At the time of his arrest, O'Hara had 58 Vicodin tablets in his possession, but under the State's theory he would have violated the trafficking law even if he had possessed far fewer. Section 893.135(1)(c)(1)(a) establishes a three-year minimum mandatory prison term for possession of "4 grams or more, but less than 14 grams" of hydrocodone....

...Under the statute, when a controlled substance is mixed with another substance in a pill, the weight of the controlled substance is deemed to be the total weight of the mixture, "including the controlled substance and any other substance in the mixture." § 893.135(6)....

...Under the trafficking statute, that many Vicodin tablets would be deemed to contain over 30 grams of hydrocodone. According to the State's reasoning in this case, any patient who had the doctor's prescription filled was subject to a twenty-five year minimum mandatory prison term and a mandatory fine of $500,000. See § 893.135(1)(c)(1)(c) (specifying penalty for possessing 28 grams or more, but less than 30 kilograms)....

...rescribed Vicoden tablets would face a minimum mandatory prison term of 25 years and a fine of $500,000. But if the 60 tablets in his possession were Vicoprofen, his minimum mandatory punishments would be fully ten years fewer and $400,000 less. See § 893.135(1)(c)(1)(b) (specifying penalty for possessing 14 grams or more, but less than 28 grams)....

...tect the public from the illicit trade in narcotics and its duty to ensure the ability of the afflicted to obtain drugs that are critical to their well-being. It is impossible to reconcile that endeavor with the State's position about the meaning of section 893.135(1)....

...Judging by its quick response to the public health ramifications of removing hydrocodone from Schedule III, it is unimaginable that the Legislature would endanger the public by imposing such an onerous burden as that advocated by the State in this case. To summarize, section 499.03 and section 893.13 allow a person to legally possess either a legend drug or a controlled substance when the drug was obtained pursuant to a valid prescription....

...App.1992); Jason S. Thaler, Public Housing Consent Clauses: Unconstitutional Condition or Constitutional Necessity?, 63 Fordham L.Rev. 1777 (1995). Reversed and remanded. FULMER, J., and PELLECCHIA, DONALD E., Associate Judge, Concur. NOTES [1] See § 893.13(1)(a), Fla....

...[3] The record identifies the dormitory suite as either 203 Beta House or 203 Zeta House. [4] The motion to suppress is dispositive of the marijuana possession charge because the State was required to prove Mr. Beauchamp possessed the marijuana found in his bedroom with an intent to sell it. See § 893.13(1)(a), Fla....

...Likewise, the motion is dispositive of the paraphernalia possession charge. We are not called upon to determine whether the police officer at the doorway of the suite could have charged Mr. Beauchamp with misdemeanor possession based on the odor and his confession. See § 893.13(6)(b), (d), Fla....

...the record before this court that the sentences are illegal. See Higgins v. State, 799 So.2d 344 (Fla. 2d DCA 2001). In circuit court case number 95-15938, Virgil pleaded guilty to possession of cocaine with intent to sell or deliver in violation of section 893.13(1)(a), Florida Statutes (1995). The trial court sentenced her as a habitual felony offender to fifteen years in prison. Pursuant to section 775.084(1)(a)(3), Florida Statutes (1995), a defendant cannot be sentenced as a habitual felony offender for violating section 893.13 relating to the purchase or the possession of a controlled substance....

...ence in case number 95-3049. In addition, in circuit court case numbers 95-4623 and 96-06981, Virgil was sentenced as a habitual felony offender to trafficking in cocaine, 28 grams or more but less than 200 grams. These sentences are illegal because section 893.135(1)(b)(1)(a) of the Florida Statutes provides that if the quantity of the cocaine involved is 28 grams or more but less than 200 grams, the defendant shall be sentenced pursuant to the sentencing guidelines....

...Butterworth, Atty. Gen., Tallahassee, and Edward L. Giles, Asst. Atty. Gen., West Palm Beach, for appellee. PER CURIAM. Appellant Ezekiel Peterson was convicted below of sale, delivery or possession with *1029 intent to sell or deliver cocaine under section 893.13(1)(a), Florida Statutes (1991). He was also found guilty of possession of cocaine under section 893.13(1)(f), Florida Statutes (1991)....

...The evidence at trial was that Peterson sold a cocaine rock to an undercover officer. He had obtained the rock from a codefendant who took it from a vial. After both men were arrested, the vial was seized. It contained 32 cocaine rocks. Peterson argues that he may not be convicted under section 893.13(1)(a) and also under section 893.13(1)(f) for possession of the same quantity of cocaine....

...lien imposed. If he requests a hearing, one should be set pursuant to rule 3.720(d)(2). GLICKSTEIN, KLEIN, JJ., and GROSS, ROBERT M., Associate Judge, concur. NOTES [1] The judgment of conviction signed by the trial court indicates conviction under section 893.13(1)(b) instead of section 893.13(1)(f)....

...The state challenges the trial court's order granting the appellee's motion to suppress evidence. We find that the trial court erred in granting the motion to suppress and, accordingly, reverse. The appellee was charged with one count of possession of cocaine in violation of section 893.13(1)(f), Florida Statutes (1991)....

...for trespass after warning. The officer's search of M.A.D.'s bag yielded the presence of a small amount of marijuana. M.A.D. was thereafter arrested and charged in a petition for delinquency with one count of possession of cannabis in violation of section 893.13(6)(b), Florida Statutes (1997)....

...Carey Haughwout, Public Defender, and Jennifer Brooks, Assistant Public Defender, West Palm Beach, for appellee. *990 GROSS, J. The state appeals the granting of a motion to suppress in favor of appellee, Billy Lampley, who was charged with possession of cocaine with intent to sell or deliver, in violation of section 893.13(1)(a), Florida Statutes (2000)....

...E. Davenport, Assistant Attorney General, Tampa, for Appellant. Thomas A. Smith, Tampa, for Appellee. LAZZARA, Judge. The state of Florida appeals a county court order dismissing a criminal charge embodied in a notice to appear which determined that section 893.13(7)(a)5., Florida Statutes (1995), which formed the basis for the charge, was unconstitutionally vague and overbroad....

...Because we conclude that the statute is neither overbroad nor impermissibly vague in all of its applications and thus is facially constitutional, we reverse and remand for further proceedings. The state charged the appellee, Jack De La Llana, by notice to appear with violating section 893.13(7)(a)5., which makes it unlawful for any person: To keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place which is resorted to by persons using controlled substances in vi...

...very brief hearing consisting of nothing more than a recapitulation of the appellee's motion and a perfunctory discussion of the law, the trial court orally granted the motion. Its announced reason for doing so was based on a "finding that [section] 893.13(7)(a)5....

...s, the statute violates the equal protection of the law and results in the unconstitutional deprivation of due process." We begin our resolution of this appeal by limiting the focus of the analysis we must employ in deciding the constitutionality of section 893.13(7)(a)5....

...ep or maintain" contemplates conduct involving control over a place in a managerial capacity. We conclude from this analysis, coupled with the well-pleaded allegations of the state's notice to appear, that the appellee has failed to demonstrate that section 893.13(7)(a)5....

...State, 289 So.2d 388, 390 (Fla.1973) (criminal statute need not furnish detailed plans and specifications to comply with constitutional requirements). In view of our conclusions, we, as well as the appellee, are prohibited from delving into the hypothetical realm of considering whether there exists the possible risk that section 893.13(7)(a)5....

...Accordingly, for the reasons expressed, we reverse the order under review and remand this case for further proceedings. Reversed and remanded for further proceedings. THREADGILL, C.J., and DANAHY, J., concur. NOTES [1] A person who violates this provision commits a misdemeanor of the first degree. See § 893.13(7)(b), Fla....

...in constitutionally protected speech or expression). [3] This concept of a statute's lack of a "core" was explored in Brown v. State, 629 So.2d 841 (Fla. 1994), in which the supreme court found that the undefined phrase "public housing facility" in section 893.13(1)(i), Florida Statutes (Supp....

...Renee Waters, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Alfred Washington, Jr., Assistant Attorney General, Daytona Beach, for Appellee. ORFINGER, R.B., J. Mathew Dickerson (Dickerson), challenges the constitutionality of sections 893.13(1)(e) and 812.171, Florida Statutes (1999), which enhance the penalties imposed on defendants convicted of selling, manufacturing, delivering or possessing a controlled substance within 1,000 feet of a convenience business. Dickerson claims that the statutes are void for vagueness. We find the statutes to be constitutional and affirm Dickerson's judgment and sentence. The relevant portion of section 893.13(1)(e), Florida Statutes (1999), provides: Except as authorized by this chapter, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance not authori...

...ute places a reasonable person on notice of what constitutes "convenience business." Dickerson then entered a negotiated plea of no contest and reserved his right to appeal the denial of the motion to dismiss. In challenging the constitutionality of section 893.13(1)(e), Florida Statutes (1999), Dickerson argues that the trial court should have found the statute to be unconstitutional because the language of the statute is vague in its creation of a 1000-foot drug-free zone around convenience businesses....

...nd burden rests on defendant to establish the contrary). A challenge to a statute on grounds of vagueness turns initially to the *1147 nature of the behavior the statute seeks to regulate. Rice v. State, 754 So.2d 881, 884 (Fla. 5th DCA 2000). Since section 893.13(1)(e) does not regulate constitutionally protected conduct, it could only be found to be unconstitutionally vague if the statutory language is so vague that it fails to give adequate notice of any conduct that the statute proscribes....

..."convenience business." This argument is unavailable to Dickerson unless he first demonstrates that the statute is unconstitutional as applied to the facts of his case. Dickerson has not shown that his conduct did not fall within the application of section 893.13(1)(e) and cannot challenge the statute for vagueness with respect to the hypothetical conduct of others....

...ice that certain drug offenses committed within 1000 feet of a "convenience business" would be enhanced. There is no protected right to sell narcotics anywhere. See Burch, 545 So.2d at 281. While the provisions of criminal statutes, such as sections 893.13 and 812.171, "must be strictly construed according to their letter," see Perkins v....

...ersons of common intelligence of what conduct will render them liable to be prosecuted for its violation." Gluesenkamp v. State, 391 So.2d 192, 198 (Fla.1980), cert. denied, 454 U.S. 818, 102 S.Ct. 98, 70 L.Ed.2d 88 (1981) (citations omitted). Here, section 893.13(1)(e) defines a "convenience business" by referencing section 812.171, which clearly defines the term "convenience business" and is not susceptible to more than one meaning....

...Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee. OTT, Judge. Under a two-count information appellant, Stephen Fundak, was charged and convicted of sale and possession of marijuana in violation of Section 893.13(1)(a), Florida Statutes (1977) and Section 893.13(1)(e), Florida Statutes (1977), respectively....

...It would apply to the facts in the instant case because possession of marijuana was not a lesser included offense of sale of marijuana based upon the allegations in the information. Additionally, each of the two counts can be considered as arising out of a different statute because § 893.13(1)(a), Fla. Stat. (1977) and § 893.13(1)(e), Fla....

...Thus, we affirm condition 11 with regard to illegal drugs but strike it with regard to alcohol. Reversed and remanded for a new trial; conditions of probation affirmed in part and stricken in part. RYDER, A.C.J., and BLUE, J., concur. NOTES [1] These crimes were in violation of section 843.02, Florida Statutes (1989); section 893.13(1)(a)2, Florida Statutes (Supp. 1990); section 893.13(1)(a)3, Florida Statutes (Supp....

...contraband on his person—gave Fernandez probable cause to believe a crime had been committed [6] and that Reed had committed it. [7] REVERSED. GRIFFIN, C.J., and THOMPSON, J., concur. NOTES [1] State v. T.T., 594 So.2d 839 (Fla. 5th DCA 1992). [2] § 893.13(1)(a)1, Fla....

...Jarrett . [5] Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); Chambers v. State, 700 So.2d 68 (Fla. 5th DCA 1997); State v. McLaughlin, 454 So.2d 617 (Fla. 5th DCA 1984); State v. Walton, 565 So.2d 381 (Fla. 5th DCA 1990). [6] § 893.13(6), Fla....

...I) violate double jeopardy. We agree and reverse appellant's conviction and sentence on Count I and remand with directions to discharge appellant on this count. Appellant was charged by information with sale or delivery of oxycodone, in violation of section 893.13(1)(a), Florida Statutes (Count I); trafficking in oxycodone, in that he "did knowingly sell, purchase, manufacture, delivery, bring into this state, or be in actual or constructive possession of, 4 grams or more, but less than 14 grams of oxycodone, in violation of Florida Statute 893.135(1)(c)a" (Count II); and possession of a firearm or ammunition by a convicted felon, in violation of section 790.23, Florida Statutes (Count III)....

...The information set forth the elements of the crimes with which appellant was charged, and the trial court, without objection, took judicial notice of the facts contained in the arrest affidavit. In Count I, appellant was charged with oxycodone sale or delivery (§ 893.13(1)(a), Fla. Stat. (2008)). In Count II, appellant was charged with oxycodone trafficking (§ 893.135(1)(c)1.a., Fla. Stat. (2008)). Section 893.13(1)(a) provides in pertinent part: "Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance." The information alleged that appellant knowingly sold and delivered a controlled substance. Section 893.135(1)(c)1.a. provides in pertinent part: (1) Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13: ......

...The State appeals the imposition of drug offender probation for the offense of driving while license suspended or revoked. We reverse. On September 15, 1999, the appellee, Jose G. Lazo, entered a plea of nolo contendere to possession of cocaine, a violation of section 893.13(6)(a), Florida Statutes (1997), and felony driving while license suspended or revoked, a violation of sections 322.34(5) and 322.264, Florida Statutes (1997)....

...to impose drug offender probation for the cocaine possession charge, but argues that the trial court erred in imposing concurrent drug offender probation on the felony DWLSR charge. We agree. Section 948.034(2) provides that any person who violates section 893.13(6)(a) or other specifically enumerated sections may, in the discretion of the trial court, be placed on drug offender probation in lieu of serving a term of imprisonment....