Defenses to Possession with Intent to Sell Marijuana in Florida

July 18, 2025 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

In Florida, possession with intent to sell marijuana (PWITS) is a very serious felony offense. Under Fla. Stat. Section 893.13(1)(a), this charge arises if someone is accused of possessing marijuana (or other controlled substance) with intent to sell, manufacture or deliver the substance. 

Possession with intent to sell marijuana is typically a second-degree felony (punishable by up to 15 years and a $10,000 fine). However, if the weight of marijuana found exceeds 25 pounds or 300 plants, this may be charged as a first-degree felony (punishable by up to 30 years in prison and a $10,000 fine), with increasing mandatory minimum sentences depending on the quantity.

If someone is charged with possession with intent to sell marijuana, this can be extremely stressful. However, various lawful defenses exist to a PWITS charge in Florida. This blog will discuss those defenses.

For someone to be proven guilty of possessing marijuana with intent to sell, manufacture or deliver (PWITS), the State must prove the following beyond a reasonable doubt:

• The defendant possessed a substance
• The substance was cannabis (marijuana)
• The defendant intended to sell, manufacture, or deliver the cannabis 

Note: According to 893.02, sell means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or value. Deliver means the actual, constructive, or attempted transfer from one person to another of a controlled substance.

Fla. Stat. Section 893.02 also defines manufacture as the production, preparation, propagation, compounding, cultivation, growing, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by extraction and chemical synthesis.

For PWITS purposes, manufacturing marijuana may include: 

• Growing marijuana plants
• Processing harvested marijuana (drying, trimming or curing)
• Making edibles, THC oils or concentrates
• Packaging marijuana for sale

Possession with intent to sell (PWITS) is typically a second-degree felony, punishable by up to 15 years in prison and a $10,000 fine. There is no minimum quantity of marijuana necessary for a PWITS charge if intent to sell, manufacture or deliver is proven.

However, certain quantities trigger even harsher penalties:

• 25-2,000 pounds or 300-2,000 plants: First-degree felony, punishable by up to 30 years in prison (mandatory minimum of 3 years in prison and a $25,000 fine)
• 2,000-10,000 pounds or 2,000 to 10,000 plants: First-degree felony, punishable by up to 30 years in prison (mandatory minimum of 7 years in prison and a $50,000 fine)
• Over 10,000 pounds or 10,000 plants: First-degree felony, punishable by up to 30 years in prison (mandatory minimum of 15 years in prison and a $200,000 fine)

If someone is charged with possession with intent to sell marijuana in Florida, there are various lawful defenses that may apply, depending on the facts of a case. One of these is lack of knowledge.

If someone did not know marijuana was present or in their possession, a PWITS charge cannot be legally supported. Examples may include:

• A friend gives the defendant a backpack which contains marijuana brownies without the defendant’s knowledge. An officer checks the backpack based on an anonymous tip, finds the brownies, and arrests the defendant for PWITS.
• The defendant borrows a friend’s car to run errands. During a routine traffic stop, police find a bag of marijuana under the passenger’s seat and charge the defendant with PWITS. There was no smell or visible paraphernalia.

Another defense may be a lack of intent to sell, manufacture or deliver the substance. If the possession was for personal use only, even if the defendant lacks a medical marijuana card, the mere fact that they are found with marijuana does not support a PWITS charge.

Factors that may weigh against a charge of PWITS include:

• A lack of associated paraphernalia
• No packaging found 
• No scales or cash 
• Small quantities (as opposed to larger quantities usually associated with selling, manufacturing or delivery)

Another key defense arises from when constructive possession is alleged – that the State has no evidence the marijuana specifically belonged to the defendant. A defendant may be convicted of a drug offense on a theory of constructive possession when the following elements are proven beyond a reasonable doubt (Brown v. State, 428 So. 2d 250 (Fla. 1983)):

• The defendant had knowledge of the contraband
• The defendant had dominion and control over the contraband

Important: If the marijuana at the center of a PWITS charge was found in a space that was not exclusively controlled by a particular person (such as a shared vehicle or a home), the State must provide independent evidence of knowledge and control (aside from the physical presence of the substance) to support a conviction. Courts have held that “mere proximity” is insufficient. Id.; Evans v. State, 32 So. 3d 188 (Fla. 1st DCA 2010).

Yet another defense is to allege improper police procedures or violations of a suspect’s constitutional rights (if the facts of a given PWITS case support this). Such challenges can come in the form of motions to suppress, which may allege:

• Unlawful search and seizure: If law enforcement violates someone’s Fourth Amendment rights by searching an area or seizing marijuana without receiving the necessary legal permissions, the recovered evidence may be ruled “fruit of the poisonous tree” subject to suppression. Wong Sun v. United States, 371 U.S. 471 (1963)
• Miranda violations: If law enforcement officers fail to read a suspect their Miranda rights, do so after already initiating interrogation, or use trickery or coercion to obtain a Miranda waiver, statements (including confessions) made by the suspect during that interrogation are inadmissible in court. Miranda v. Arizona, 384 U.S. 436 (1966) 

An additional defense (if the facts of the case indicate this is relevant) to PWITS is entrapment.

There are two types of entrapment defenses, either of which may be used depending on the facts of a case:

• Objective entrapment: Law enforcement conduct is so egregious, it violates the due process rights of the defendant and contaminates the legal proceedings against them. Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019). 
• Subjective entrapment: The defense must first prove by a preponderance of the evidence that the State induced the defendant to commit the offense. If inducement is established, the State must prove beyond a reasonable doubt that the defendant was predisposed to act criminally. Munoz v. State, 629 So. 2d 90 (Fla. 1993). If the State cannot do so, the charge fails on entrapment grounds.

Examples of hypothetical cases where a subjective entrapment defense (Fla. Stat. Section 777.201) may be relevant in fighting a PWITS marijuana charge include:

• An undercover officer repeatedly approaches a defendant at work, asking him to sell weed. The defendant initially refuses multiple times. After several days of pestering and promises of money for his sick child, the defendant finally agrees and sells a small amount of marijuana, only to be arrested.
• An undercover officer offers the defendant money and a job if he can “just deliver this package” to a customer. The defendant agrees, thinking it does not contain illegal material. The package contains marijuana and the officer arrests him upon delivery.

In some cases (though this is rare), an objective entrapment defense has been brought in response to drug charges like PWITS marijuana. This has generally been limited to egregious instances of police misconduct like State v. Williams, 623 So. 2d 462 (Fla. 1993) – in which Florida police officers manufactured crack cocaine, packaged it, and sold it in an attempt to set up buyers for drug charges.

Yet another defense is insufficient evidence of intent. Though this may still result in marijuana possession charges being brought (893.13(6)), evidence such as scales may be circumstantial. Paraphernalia can be used as evidence of intent – however, in the absence of anything definitive connecting the alleged paraphernalia to the drugs (other than an officer’s belief), someone may argue no intent to sell has been proven. 

In some instances, a medical marijuana defense may be relied upon. Adults in Florida can obtain a medical card for personal marijuana use under Fla. Stat. Section 381.986 if they qualify for this. However, this is not a defense to unlawful sale, manufacture, or distribution of marijuana if this occurred. 

Though there are many lawful defenses to a charge of PWITS marijuana in Florida, certain others are not considered legally valid (“non-defenses”). These include:

• “It was just for personal use”: Though it may fight a PWITS charge marijuana possession is still illegal in Florida (unless it complies with Fla. Stat. Section 381.986 requirements)
• No actual sale or delivery: This does not matter – if there was intent to sell, manufacture or deliver the marijuana, the statute was violated.
• “It was a small quantity of marijuana”: PWITS can be charged even for small quantities of the drug if sufficient evidence of intent to sell, manufacture or deliver exists
• Lack of profit/”just helping a friend”: Even if there is no monetary exchange for the marijuana, this qualifies as transfer of the drug under Fla. Stat. Section 893.13(1)(a), which supports a PWITS charg

In sum, possession with intent to sell, manufacture or deliver marijuana (cannabis) is a very serious felony offense in Florida. It is typically charged as a second-degree felony (punishable by up to 15 years in prison and a $10,000 fine), unless the amount possessed is so large that it triggers first-degree felony charges (punishable by 30 years in prison, often with heavy mandatory minimum sentences).

However, various defenses exist to possession with intent to sell charges. These include lack of intent to sell, lack of knowledge of the substance, constructive possession (without additional evidence of knowledge/control), entrapment, challenges to searches and seizures, and more.

In the event someone is charged with a marijuana-related offense, it is vital to seek out aggressive and experienced legal counsel as soon as possible. The attorneys at Pumphrey Law have decades of experience fighting to win for clients across Florida in marijuana cases.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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