The Middle of the Ladder
Between simple possession and trafficking sits a group of charges that share one idea: that the drugs were headed to someone else. Under section 893.13, the sale, the delivery, the manufacture of a controlled substance, and the possession of one with intent to sell are all felonies, and the degree rises with the schedule of the drug. The amount in these cases is often modest. What separates them from a possession charge is not the quantity but the claim that you meant to pass the drugs on, and that claim is usually built on inference rather than proof.
| Charge | What the State must prove | Note |
|---|---|---|
| Possession with intent | Possession plus an intent to sell or deliver | Intent is usually inferred from circumstances |
| Delivery | A transfer of the substance, with or without payment | No money needs to change hands |
| Sale | A transfer for consideration | Often built on a controlled buy |
How Possession Becomes Possession With Intent
Almost no one confesses to an intent to sell, so the State assembles it from circumstances: the quantity, the way the drugs are divided and packaged, the presence of a scale, of cash in small bills, or of a ledger, and the absence of anything suggesting personal use. Each of those is an inference, not a fact, and each can be answered. A larger quantity bought at a discount for personal use is not an intent to sell, and ordinary cash is not a drug ledger. Taking apart the inference, piece by piece, is the heart of defending a possession-with-intent charge, and a weak intent case can often be brought back down to simple possession.
Sale, Delivery, and the Controlled Buy
Delivery is simply a transfer, and it does not require that money change hands, while a sale adds the exchange. The State usually builds these cases on a controlled buy run through a confidential informant or an undercover officer, which puts the credibility of that witness at the center of the case. Informants often carry their own charges and their own incentives, and the recordings, the buy money, and the chain of events around the transaction are all places where a careful defense finds problems. There is more on informant credibility and the entrapment defense on the defenses and diversion page.
The 1,000-Foot Enhancement
Where the conduct happens can matter as much as what it was. Section 893.13 raises the felony degree, and can add a mandatory minimum, when a sale, delivery, manufacture, or possession with intent occurs within 1,000 feet of a protected place, including a school, a college, a park, a place of worship, public housing, or a convenience business. In a dense area, almost everywhere falls within 1,000 feet of something, so whether the enhancement truly applies, and whether the geography was proven, is worth a hard look.
Counterfeit, Imitation, and New Drugs
The sell-side statutes reach past real drugs. Selling or delivering a substance represented to be a controlled substance, even when the substance is harmless, is its own offense under section 817.563. And Florida’s law on controlled substance analogues and newly scheduled drugs, section 893.0356, reaches designer substances built to mimic scheduled drugs, where the identity of the substance and what the person knew about it become the contested questions, much as they did in the federal analogue case McFadden v. United States, 576 U.S. 186 (2015).
Where These Cases Are Won
A sell case has more soft spots than a possession case, because it asks the State to prove more. The intent inference can be dismantled, the informant’s credibility can be tested, the geography of an enhancement can be challenged, and the identity of the substance still has to be proven in the laboratory, which I cover on the challenging the drug evidence page. And as with any drug case, if the search that produced the evidence was unlawful, the whole thing can come apart on a motion to suppress.
Related: Drug crimes overview, Possession of a controlled substance, Defenses and diversion, and Challenging the drug evidence.
I started as an Assistant Public Defender in Florida’s Thirteenth Judicial Circuit, in Tampa, and I am one of six ACS-CHAL Forensic Lawyer-Scientists in the state. The arrest report is a starting point, not the last word, and the gaps in it are where the defense lives. Learn more about my background.
Common Questions
How does the State prove I intended to sell drugs?
Usually by inference rather than a confession. Prosecutors point to the quantity, the packaging into separate amounts, the presence of scales, cash, or a ledger, and the absence of personal-use items. Each of those inferences can be contested, and a weak intent case can often be reduced to simple possession.
What is the difference between sale and delivery?
Delivery is a transfer of the substance, and it does not require that any money change hands. Sale is a transfer for consideration. Both are felonies under section 893.13, and both are often built on a controlled buy through an informant or undercover officer.
What is the 1,000-foot enhancement?
Section 893.13 raises the felony degree, and can add a mandatory minimum, when a sale, delivery, manufacture, or possession with intent happens within 1,000 feet of a protected place such as a school, college, park, place of worship, public housing, or convenience business. Whether the enhancement truly applies and whether the distance was proven are both worth challenging.
Can I be charged for selling fake drugs?
Yes. Under section 817.563, selling or delivering a substance represented to be a controlled substance is an offense even when the substance is harmless. Florida law also reaches designer drugs and analogues under section 893.0356, where the identity of the substance and what the person knew become central.
The case is built on a confidential informant. Does that help me?
It can. Informants frequently have their own charges and incentives to cooperate, which gives the defense room to test their credibility, along with the recordings, the buy money, and the sequence of events. Where an informant or officer pushed someone into a crime they were not predisposed to commit, an entrapment defense may also apply.
This page is general information about Florida law, not legal advice, and it does not create an attorney-client relationship. The charge and the defenses turn on the substance, the amount, and the facts, and the law can change, so confirm how it applies with counsel. Every case is different, and past results do not guarantee a similar outcome.
