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Will the Judge Sentence Me to Prison for Possession of Heroin?
Drug possession charges in the state of Florida are considered extremely serious. If you have been charged with possession of heroin, your very first step should be to contact an experienced Florida criminal defense attorney who has extensive knowledge of state drug laws as well as federal laws. The Florida prosecutor must show beyond a reasonable doubt that you possessed a specific substance, that the substance was heroin, that you were aware of the presence of the heroin, and that you were aware heroin was an illegal substance to have in your possession.
What Does “Possession” Mean?
There are basically two types of possession of illegal drugs. Actual possession occurs when the police officer finds the heroin on your person, or within your reach. While actual possession is pretty straightforward, constructive possession can be much fuzzier, and much more difficult for the prosecutor to definitively prove. If the drugs were not found on your person, or within your immediate reach, rather were found in an area you had access to and control over, then constructive possession could be charged.
Generally speaking, if the heroin was found in your home or your automobile, the prosecutor will seek to prove you were aware the drugs were in those areas, that you knew the drugs were illegal, and that you had the ability to access the drugs. Each of these elements must be proven by the prosecutor, and constructive possession can become a serous problem for the state when there is not sufficient evidence against you.
As an example, suppose the heroin in question is found in a car you are driving—which does not belong to you—yet the box containing heroin has your fingerprints on it. While it might seem there is a strong case against you, in fact, your guilt cannot rest on a probability, and your attorney can argue the print could have been left at a different time—when the box contained cupcakes, rather than heroin.
Where is Heroin in the Florida Drug Schedule?
In the state of Florida, illegal drugs are categorized in a schedule, according to their potential for abuse as well as whether they currently have any use accepted by the medical community. Heroin is considered a Schedule I drug, having both a high potential for abuse, and no accepted medical use. In fact, heroin can have devastating consequences for the user, both from a health standpoint as well as from a legal standpoint. Simple possession of less than 4 grams of heroin is considered a third-degree felony—possession of 4 grams or more is considered trafficking, and is a first-degree felony, and sales of more than 10 grams of heroin is a second-degree felony, unless sold near a school, then the penalties are enhanced.
Schedule II drugs, including cocaine, opium and morphine, may have some accepted medical uses (with restrictions in place) and are considered to have a high potential for abuse as well as psychological and physical dependence. Schedule III drugs have less potential for abuse than Schedule I or Schedule II drugs, and have accepted medical uses, however they can lead to physical dependence and are likely to lead to psychological dependence. Schedule IV drugs have a lower chance of being abused, have accepted medical uses and are fairly unlikely to result in psychological or physical dependence. Schedule V drugs have accepted medical uses, little risk of psychological or physical dependence and little risk of abuse.
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General Penalties for Heroin Possession and Florida Statutes for Heroin Possession
Possession of fewer than ten grams of heroin in the state of Florida is a third degree felony, under state statute 893.13(6)(a). It is important to understand that even if small traces of heroin residue were to be found in your possession (in a pipe or on a spoon, as an example), you could be charged with possession of heroin.
If convicted of possession of heroin less than ten grams, you could be sentenced to a maximum of five years in prison, a maximum of five years of supervised probation, a driver’s license suspension of two years, a maximum fine of $5,000, a substance abuse evaluation/screening/treatment, and you could even forfeit your vehicle and/or any property used during the commission of this felony. The judge has no discretion so far as suspending your license in the event of a conviction.
Double Jeopardy Issues Associated with Possession of Heroin
The term “double jeopardy” is associated by most people with crimes such as murder—if you are acquitted of the crime of murder, you can’t later be charged with the crime again, even if additional evidence surfaces. Double jeopardy means a person cannot be tried and convicted more than once for the same crime, and cannot receive multiple punishments for the same crime. In the context of possession of heroin—or any other illegal drug—double jeopardy means you cannot be convicted of possession of heroin and trafficking of heroin for the same heroin.
How Long I Could Spend in Prison for a Heroin Possession Conviction?
The Florida Department of Corrections released Florida sentencing guidelines in the form of a scoresheet preparation manual. When a person is arrested for a felony crime, that crime is assigned a certain level as a primary offense. The level is then assigned a specific number of points. Should the defendant score above 44 points, he or she will be sentenced to time in a Florida state prison for a certain number of months—unless the Judge makes the decision to adjust the number of months downward, based on mitigating circumstances.
Possession of a Schedule I drug, such as heroin, is a level 3 offense (with a level 10 offense being the most serious). A level 3 offense, under the scoresheet preparation manual’s sentencing guidelines, is assigned 16 points. A prior criminal record can add additional points to that total, and a legal status violation will add an additional four points (escape, fleeing, failure to appear, incarceration, pretrial intervention or diversion program, etc.). Any additional offenses will add points to the primary offense.
If there is a community sanction violation before the court, relating to probation, community control or pretrial intervention or diversion, points can be added to the new primary offense violation. As an example, six points can be added for any violation other than a new felony conviction, or a new felony conviction can add 12 points. If a semi-automatic weapon or a machine gun is involved in the crime, 18 or 25 points can be added.
Thirty points can be added to the total for a prior serious felony conviction. Enhancements can also add additional points—as an example, if the crime is a criminal gang offense, or if the person is a known drug trafficker, the points will be multiplied by 1.5. Therefore, as an example, a conviction for possession of heroin adds 16 points. If the accused committed a legal status violation such as failure to appear, 4 more points would be added.
If the accused also violated probation, then six points will be added, and if the accused is considered a drug trafficker, then the total points would be multiplied by 1.5. This translates to 16 + 4 + 6 = 26 x 1.5 = 39. Since this number falls below the threshold of 44 points, the lowest permissible sentence is any non-state prison sanction. The judge could impose jail time and/or fines, as well as community service and mandatory drug treatment, and the accused will lose his or her license for two years. If the total points equal 44 or above, this formula will determine the number of months in prison: Total points -28 x .75 = months of prison sentence.
Potential Defenses to Charges of Possession of Heroin
It is important to understand that having a knowledgeable drug attorney in your corner can greatly increase the chances of a positive outcome for your heroin possession charges. There are certain defenses available to you, dependent on the specific facts and circumstances of your case. Perhaps your 4th Amendment rights were violated during an illegal search and seizure. There may be a lack of evidence in your case, which your attorney can use to have the charges dropped. Mistakes could have been made in the lab, when the drugs were tested, there may have been no search warrant, or the search warrant may have been improperly executed. Miranda violations could have been committed, or there may simply be no proof that you were in actual or constructive possession of the heroin.
Why You Must Have an Experienced Criminal Defense Attorney by Your Side
An experienced criminal defense attorney from The Law Place can evaluate the facts of your case, presenting your legal options clearly, and answering any questions you may have. We will honestly assess the likely outcome of your heroin possession charges, and may be able to negotiate a plea with much fewer penalties. Don’t attempt to fight your charges on your own—call The Law Place today.
Florida Interactive Sentencing Guideline
The Law Place has created an interactive felony sentencing guideline that can be found HERE.