Being charged with possession of a controlled substance is serious on its own—but when prosecutors add “intent to sell”, the penalties increase dramatically. In Florida, the difference between simple possession and possession with intent to sell often comes down to how the evidence is interpreted rather than what was actually found.
What the Law Says
Florida Statute § 893.13, it is unlawful for any person to possess, manufacture, or deliver a controlled substance with the intent to sell, distribute, or dispense it. The prosecution must prove:
- The substance was illegal under Florida law.
- The defendant knowingly possessed it.
- The defendant intended to sell or distribute it.
That last element—intent—is what elevates a misdemeanor or low-level felony into a major criminal charge carrying years of prison time, probation, and a permanent felony record.
How Prosecutors Try to Prove Intent
Because intent isn’t something that can be seen or measured directly, prosecutors rely on circumstantial evidence such as:
- Quantity of the substance: Possessing more than what’s typically used for personal consumption can suggest intent to sell.
- Packaging: Drugs divided into smaller baggies or containers often lead prosecutors to argue they were prepared for distribution.
- Scales or measuring devices: Equipment for weighing or packaging drugs is frequently cited as evidence of intent.
- Large amounts of cash: Unexplained cash, particularly in small denominations, can be used to infer sales activity.
- Text messages or call logs: Digital communication suggesting sales or exchanges may be presented as proof of intent.
- Surveillance or testimony: Observations of hand-to-hand transactions or witness statements can strengthen a prosecutor’s case.
However, each of these items can have innocent explanations, and assumptions made by law enforcement don’t always hold up under legal scrutiny.
Potential Penalties
Penalties depend on the type and amount of controlled substance involved:
- Marijuana (under 20 grams): Typically a misdemeanor; with intent to sell, it becomes a third-degree felony (up to 5 years in prison). Even small amounts of cannabis may be charged as intent to sell if other evidence suggests distribution.
- Cocaine, heroin, methamphetamine, prescription opioids, or MDMA: Possession with intent to sell may be charged as a second-degree felony (up to 15 years in prison).
- Within 1,000 feet of certain protected locations such as schools, parks, community centers, or places of worship.
Common Defense Strategies
A strong defense often focuses on undermining the state’s evidence of intent or challenging how the evidence was obtained. Possible strategies include:
- Illegal search and seizure: Evidence gathered without a valid warrant or probable cause can be suppressed.
- Lack of intent: The quantity or packaging may have been consistent with personal use, not distribution.
- Constructive possession: The drugs may have been found in a shared space not exclusively controlled by the defendant.
- Entrapment or unreliable informants: If undercover operations crossed legal boundaries, charges can be reduced or dismissed.
Each case depends on its facts, and early involvement of a defense attorney is critical to preserve evidence and protect constitutional rights.