Possession with the Intent to Sell

Even when the amount of a controlled substance allegedly possessed by an accused is not enough to constitute a drug trafficking offense, police officers may still charge the individual with possession with intent to sell. 

Intent to sell crimes carry penalties that are much more serious than simple possession offenses. There are a number of key factors that indicate that an individual “intends” to sell drugs. Police officers have been known to consider items like: scales, baggies or other packaging material, large quantities of a substance, firearms, and similar items to be evidence of an intent to sell.

Attorney for Possession with the Intent to Sell Arrests in Pensacola, FL

Were you recently arrested anywhere in Escambia County for possession with intent to sell a controlled substance? Do not make any statement to authorities until you have first contacted The Law Office of James M. Burns. 

James M. Burns is an experienced criminal defense lawyer in Pensacola who defends clients facing various drug charges in Navarre, Milton, Perdido Key, Fort Walton Beach, and many surrounding areas in the Florida Panhandle. He can provide an honest and thorough evaluation of your case when you call (850) 457-6002 to receive a free initial consultation.


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Definition of Intent to Sell under Fla. Stat. § 893.13

Chapter 25.2 of the Florida Jury Instructions states that a prosecutor must prove the three following elements in order to prove the crime of sale, purchase, manufacture, delivery, or possession with intent to sell, purchase, manufacture, or deliver a controlled substance:

  • The alleged offender sold, manufactured, delivered, purchased, or possessed with intent to sell, manufacture, deliver, or purchase a certain substance;
  • The substance was an controlled substance; and 
  • The alleged offender had knowledge of the presence of the substance. 

The Jury Instructions state that there are two types of possession: actual possession and constructive possession. Actual possession means the person is aware of the presence of the substance and the substance is in the hand of or on the person, in a container in the hand of or on the person, or is so close as to be within ready reach and is under the control of the person. Constructive possession means the person is aware of the presence of the substance, the substance is in a place over which the person has control, and the person has the ability to control the substance.

Mere proximity to a substance is not sufficient to establish the power and intention to control that substance when the substance is in a place that the person does not control.

The Jury Instructions state that a juror may infer that an alleged offender was aware of the presence of the substance and had the power and intention to control it if the juror finds that the alleged offender had direct physical custody of the substance, was within ready reach of the substance and the substance was under his or her control, or had exclusive control of the place where the substance was located.

A juror cannot make such an inference if the alleged offender did not have exclusive control over the place where a substance was located. 

The intent to sell element of these types of alleged offenses are even more subjective. In most cases, prosecutors rely on circumstantial evidence at the scene of the alleged offender's arrest to argue that such items were indicative of the individual's intent to sell. Common forms of circumstantial evidence in these cases include, but are not limited to: 

  • Large amounts of cash; 
  • Drugs packaged in smaller, equal amounts;
  • Paraphernalia such as baggies, scales, or mixing devices;
  • Verbal statements or electronic messages by or to the alleged offender about the sale of the controlled substance;
  • Guns, firearms, or other weapons; and/or 
  • The location of the arrest.

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Escambia County Possession with the Intent to Sell Penalties

Under Florida Statute § 893.13, a person who sells, manufactures, delivers, or possesses with intent to sell, manufacture, or deliver, a controlled substance can face the following charges, depending on which drug schedule the controlled substance is classified under: 

  • Schedule I or Schedule II — Second-Degree Felony punishable by up to 15 years in prison and a fine of up to $10,000;
  • Schedule III or Schedule IV — Third-Degree Felony punishable by up to five years in prison and a fine of up to $5,000; or
  • Schedule V — First-Degree Misdemeanor punishable by up to one year in jail and a fine of up to $1,000.

Intent to sell crimes, however, are subject to enhanced charges when the alleged offenses are committed in, on, or within 1,000 feet of the real property comprising any of the following:

  • A child care facility between the hours of 6 a.m. and 12 midnight; 
  • A public or private elementary, middle, or secondary school between the hours of 6 a.m. and 12 midnight; 
  • A state, county, or municipal park, community center, or publicly owned recreational facility. 
  • A public or private college, university, or other postsecondary educational institution;
  • A physical place for worship at which a church or religious organization regularly conducts religious services; 
  • A public housing facility;
  • An assisted living facility; or
  • A convenience business. 

In such cases, possession with intent to sell offenses involving Schedule III or Schedule IV controlled substances become second-degree felonies and those involving Schedule I or Schedule II controlled substances are classified as first-degree felony offenses punishable by up to 30 years in prison and/or a fine of up to $10,000.


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The Law Office of James M. Burns | Pensacola Possession with the Intent to Sell Defense Lawyer

If you were arrested for alleged possession with intent to sell a controlled substance or any other drug crime such as possession of marijuana in the Florida Panhandle, it will be in your best interest to immediately retain legal counsel. The Law Office of James M. Burns represents residents and visitors throughout the following counties: Escambia County, Santa Rosa County, and Okaloosa County, Florida. 

Call (850) 457-6002 or complete an online contact form to take advantage of a free, confidential consultation that will allow our lawyer to review your case and answer all of your legal questions.

This article was last updated on Friday, March 30, 2018.