Drug Possession in Florida: Charges, Penalties, and How It Differs from Trafficking

What “possession” means

Section 893.13, Florida Statutes, prohibits being in “actual or constructive possession” of a controlled substance. A controlled substance is anything listed in Schedules I through V of section 893.03, which includes prescription medicines as well as illegal drugs.

• Actual possession. Florida’s standard jury instructions describe this as knowing the substance is there and having it in the hand or on the person, in a container in the hand or on the person, or within ready reach and under the person’s control.
• Constructive possession. The substance is not on the person but is in a place the person controls, and the person knows it is there. The instructions state that mere proximity to a controlled substance is not sufficient to establish constructive possession.

What the law says: possession levels

The possession offenses are in subsection (6) of section 893.13. Our summary of section 893.13 covers the rest of the section.

What is possessed	Offense level	General maximum
A controlled substance that was not lawfully obtained from a practitioner or under a valid prescription	Third-degree felony	5 years in prison, $5,000 fine
20 grams or less of cannabis	First-degree misdemeanor	1 year in jail, $1,000 fine
A Schedule V substance	Second-degree misdemeanor	60 days in jail, $500 fine
More than 10 grams of certain Schedule I and Schedule II substances named in the statute	First-degree felony	30 years in prison, $10,000 fine

These maximums come from sections 775.082 and 775.083 and are not predictions. Felony sentencing follows the Criminal Punishment Code, explained in our guide to felony charges in Florida.

The 20-gram cannabis rule

Possession of 20 grams or less of cannabis is a misdemeanor, unlike most possession charges. Three limits apply.

• Weight. More than 20 grams falls under the general rule and is a third-degree felony.
• Form. For this rule, the statute says “cannabis” does not include the resin extracted from the plant or any preparation of that resin, so those products are not covered by the misdemeanor level.
• Medical marijuana and hemp. Section 893.02 excludes from the definition of cannabis marijuana that is possessed in conformance with Florida’s medical marijuana law (section 381.986) and hemp as defined in section 581.217.

Possessing drug paraphernalia with intent to use it is a separate first-degree misdemeanor under section 893.147, Florida Statutes. Our guide to misdemeanors in Florida explains how those cases move through county court.

How possession differs from trafficking

Section 893.13 has two tiers. Simple possession, in subsection (6), is generally a third-degree felony. Selling, making, or delivering a drug, or possessing it with intent to do so, is covered by subsection (1). For most substances that is a second- or third-degree felony, depending on the schedule, and the level rises within 1,000 feet of places such as schools and parks. Trafficking is a third tier with its own statute.

For trafficking, possession alone is enough. Section 893.135, Florida Statutes, applies to a person who is knowingly in actual or constructive possession of the threshold quantity, and the weight includes any mixture containing the drug. Trafficking begins at:

• cannabis: more than 25 pounds, or 300 or more plants;
• cocaine: 28 grams;
• heroin, morphine, and fentanyl: 4 grams;
• oxycodone: 7 grams;
• hydrocodone: 28 grams; and
• methamphetamine or amphetamine: 14 grams.

The mandatory minimums rise with the weight. In the lowest tier the minimum is three years in prison for most of these drugs and seven years for fentanyl, with a fine of $25,000 for cannabis and $50,000 for the others. See our summary of section 893.135.

Knowledge, prescriptions, and other rules in the statutes

• Knowledge. Section 893.101, Florida Statutes, provides that knowledge of the illicit nature of a substance is not an element the State must prove. Lack of that knowledge is an affirmative defense, and when it is raised the jury is told it may presume the person knew. This is separate from knowing the substance was present, which is part of possession itself.
• Prescriptions. Possession is not an offense under section 893.13(6) when the substance was lawfully obtained from a practitioner or under a valid prescription.
• Overdose emergencies. Under section 893.21, Florida Statutes, a person who in good faith seeks medical help for someone having an overdose, or who is having one, may not be arrested, charged, or prosecuted for simple possession or paraphernalia if the evidence was obtained because of the request for help. The protection does not cover the first-degree felony possession offense.
• How the evidence was found. Whether a stop or search was lawful is a separate question for a judge. See your rights in Florida.

What happens next

1. Arrest and first appearance. A person who is arrested and not released sees a judge within 24 hours. A person arrested for trafficking cannot post bond before that hearing. See what happens at first appearance in Florida.
2. The charge and the court. The State Attorney decides what to file, and the identity and weight of the substance determine which statute applies. Misdemeanor cannabis cases go to county court and felony cases to circuit court. See how the Florida criminal court process works.
3. Treatment-based diversion. Section 948.08, Florida Statutes, provides a pretrial substance abuse education and treatment program for a person charged with a nonviolent felony who has a substance abuse problem and no more than two prior felony convictions, all nonviolent. If the person completes the program, the court dismisses the charge. Entry must be denied if the State shows the person was involved in dealing or selling. See the glossary entries for diversion and pretrial intervention.
4. Driver license. When a person 18 or older is convicted of possession, section 322.055 directs the court to order a six-month license suspension. The court may allow a license restricted to business or employment purposes in compelling circumstances.

Common questions

Is possession of marijuana a felony in Florida?

It depends on the amount and form. Twenty grams or less of cannabis is a first-degree misdemeanor. More than 20 grams is a third-degree felony, and more than 25 pounds is trafficking. Marijuana possessed in compliance with the medical marijuana law is outside these rules.

Can I be charged if the drugs were not mine?

Ownership is not the test. The question is whether the State can prove possession: that the person knew the substance was there and had it on them, within ready reach, or in a place they controlled. Being close to a drug, without more, is not enough under the standard jury instructions.

Can a drug possession record be sealed?

It depends on how the case ended and on the person’s whole record. Manufacturing and trafficking cannot be sealed or expunged after a plea or a finding of guilt. Simple possession is not excluded in that way, but the other eligibility rules still apply. See sealing or expunging a Florida criminal record.

When to speak with an attorney

Most possession charges are felonies, and the line between possession, intent to sell, and trafficking turns on the weight of the substance and on what the State can prove about knowledge and control. A licensed Florida attorney can review how the evidence was obtained. A person who cannot afford a lawyer can ask the court to appoint the public defender. To prepare, see how to prepare for an attorney consultation. More guides and statute summaries are on the Drug Crimes topic page.