EMD was arrested on June 9, 2008, in Fort Pierce as part of a “Weed and Seed” crackdown.
EMD was passing through Fort Pierce, visiting friends, on her way to Key West. She was introduced to “Alex” who, unbeknownst to EMD, had an impressively lengthy criminal history. Alex was to assist EMD in securing “supplies” for the trip to Key West. These supply efforts caused EMD and Alex to drive into the “bullet hole” section of Fort Pierce, just off of Avenue D.
EMD’s vehicle was stopped and searched. Six grams of crack cocaine were found in EMD’s purse. After Miranda, EMD explained that she had given money to Alex to purchase the crack for the trip to Key West.
Law enforcement saw fit to charge EMD with possession of cocaine with intent to sell – even though there was no evidence that she was selling the cocaine, and she had explained it was for personal use. The six grams were in the form of a single small cookie. In addition, law enforcement charged EMD with possession over 20 grams of cannabis, despite the fact that only seven grams of cannabis were seized, and possession of drug paraphernalia.
The plea offer was 13 months in prison, even though this was EMD’s first offense. The State reasoned that the “intent to sell” converted simple possession of cocaine into a 15-year felony. Importantly, the intent to sell also prevented the case from being referred to drug court. Attorney Garland was retained three months post-arrest and after the case had “bogged down”.
Attorney Garland sought to change the status of the case in order to open up options for the client. Garland’s investigation established an obvious and indisputable fact: Evidence logs showed that only seven grams of cannabis were seized and placed into evidence. Garland filed a motion for partial dismissal under F.R.Crim.P. 1.90(c)(4). This rule allows the court to rule upon the sufficiency of the evidence to support a charge or charges when there are no disputed material facts, and the undisputed material facts fail to establish a prima facie case of guilt.
Garland moved to dismiss alleging that the felony possession of cannabis charge should, in fact, be only a misdemeanor possession charge. Garland alleged that controlling cases required reduction of the “intent to sell” charge to simple possession of cocaine.
The motion to dismiss cited Sampson v. State, 863 So.2d 404, 405 (Fla. 4th DCA 2003), for the proposition that 12.9 grams of cocaine are not sufficient to prove intent to sell:
The record reveals that, while 12.9 grams of cocaine were found in the fanny pack, the State failed to present evidence that the amount of cocaine found was inconsistent with personal use, or that there was any other indication that Sampson intended to sell the cocaine. Thus, the denial of Sampson’s judgment of acquittal on this motion was improper. See McCullough v. State, 541 So.2d 720, 721 (Fla. 4th DCA 1989) (stating that the quantity of cocaine found can prove intent to sell where this amount is inconsistent with personal use, but finding that reversal was warranted, as no evidence was presented that defendant intended to sell the cocaine, or that the cocaine was inconsistent with personal use, as the 6.15 grams of cocaine found was not sufficient in and of itself to prove intent to sell).
In Glenn v. State, 824 So.2d 1046 (Fla. 4th DCA 2002), it was held that possession of two plastic vials containing approximately four grams of crack cocaine was insufficient, by itself, to establish intent to sell. Glenn went on to apply the circumstantial evidence rule: “Where the only proof of an intent to sell is circumstantial, it may support a conviction only if it excludes every reasonable hypothesis of innocense.” Glenn at 1049. Citing to Jackson v. State, 818 So.2d 539, 541 (Fla. 2nd DCA 2002). Glenn pointed out that “[t]he quantity of drugs possessed may be circumstantial evidence of intent to sell it, but only if the quantity is inconsistent with personal use”. Glenn approved Jackson’s holding that five grams of cocaine packaged in six baggies were insufficient to refute a claim of personal use. Glenn at 1049.
The motion to dismiss was called up for hearing on December 4, 2008. At that time, the State agreed to reduce the “intent to sell” charge to simple possession of cocaine. The State also agreed to reduce the felony possession of cannabis to simple possession under 20 grams. The defendant entered into a negotiated plea in order to secure her immediate release from jail. She had been incarcerated for several months for violation of her terms of pre-trial release. She was sentenced to two years drug offender probation on the possession of cocaine charge. Adjudication of guilt was withheld.