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Florida May Allow for Lower Sentence for Drug Traffickers

Jan. 8, 2016

Drug Trafficking charges in Florida are basically only trumped up possession charges. This means that to prove drug trafficking, the state attorney only needs to prove that the defendant possessed a certain amount of a controlled substance – this amount is defined by Florida Statute 893.135 and is different for each drug. For example it to be convicted of trafficking in oxycodone, the state needs to show that the defendant possessed 7 or more grams of oxycodone while 1 gram or more is sufficient to be convicted of trafficking in LSD. The bad news is that these trafficking charges carry much higher sentences than regular possession charges. Florida law provides for mandatory minimum prison sentences between 3 and 25 years for a trafficking charge depending on the drug and the amount possessed. Under the current law there are only two scenarios to get around the mandatory prison sentence:

  • The court agrees to sentence the defendant as a Youthful Offender (YO) – this is only available for defendants who are under 21 years old on the date of the sentencing.

  • The state attorney’s office agrees to forgo the minimum mandatory sentence – usually based on substantial assistance provided by the defendant.

The big problem with the law is that the trafficking statute does not actually punish people who are selling or delivering drugs. So this means that the trafficking statute does not punish the drug dealer on the side of the street who only has a small amount of a drug on him and sells those. Instead the statute punished people who simply have a certain amount of a drug in their possession (for example a relatively minor amount of prescription pain killers).

However, there may be some good news for criminal defendants. There seems to be a trend in the Florida legislature to lessen the sentences a little bit for drug people who possess a small amount of certain drugs and who do not have the intention to sell the drugs. In 2014, a new law went into effect that increased the minimum amount that a defendant had to possess to be convicted of trafficking in oxycodone and hydrocodone from 4 grams to 14 grams. This means that someone found to possess 4 grams but less than 14 grams of either oxycodone and hydrocodone can no longer be charged with trafficking. These defendants will now only be guilty of simple drug possession charges that do not carry a minimum mandatory sentence.

Now, the legislature has gone even a step further and there is currently a new proposed bill pending that would allow the defendant to request a downward departure from the minimum mandatory prison sentence directly from the judge. The judge under the same bill would have the power to agree to such a downward departure over an objection by the state attorney’s office if the defendant meets 10 criteria that are set out in the statute. Based on proposed 2016 Senate Bill 84 the following conditions would have to be met:

  • A defendant can only benefit from the downward departure once in a lifetime under this statute.

  • The defendant can only qualify for the downward departure if facing the 3 year minimum mandatory prison sentence but not a higher minimum mandatory sentence of 7, 15 or 25 years.

  • The defendant possessed only up to a certain amount of an enumerated controlled substance.

  • The defendant did not have the intent to sell or manufacture the controlled substance.

  • The defendant did not get the substance from a minor.

  • The defendant did not get the substance by using a gun or other deadly weapon or by using or threatening physical harm.

  • The defendant has no prior conviction or withhold of an adjudication for drug trafficking.

  • The defendant has never been convicted of possession with intent to sell either as an adult or a juvenile. This includes a withhold of conviction for the same charge.

  • The defendant has never been convicted of certain other listed crimes, including but not limited to sexual battery and pornography. This includes the withhold of a conviction as well as a conviction in juvenile court.

  • The judge determines that the defendant needs drug treatment and the defendant is willing to participate in such treatment.

All in all these type of drug charges can have very harsh effects with long mandatory prison sentences and large fines. However, there are many ways to defend against these charges – please see my section on drug trafficking laws for more information on this and the law is also constantly changing in this area. So if you have an issue involving drug trafficking or other drug charges, contact the Wade Law Firm today.