What Turns Simple Possession Into Possession With Intent to Sell in Florida?

August 28, 2025 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

In Florida, the difference between simple possession of a controlled substance and possession with intent to sell is primarily determined by specific factors that indicate a defendant’s intent to sell or deliver the substance, as opposed to simply using it for personal use or consumption.

But what turns simple possession into possession with intent to sell, manufacture, or deliver? This blog will explore the answer to this important question.

Under Florida law, possession with intent to sell, manufacture, or deliver is distinct from simple possession of a controlled substance. Though both are codified under Fla. Stat. 893.13, they are distinct because possession with intent to sell/manufacture/deliver (PWITS) requires the State to prove the defendant’s intent to sell, manufacture, or deliver the substance beyond a reasonable doubt.

Simple possession of a controlled substance in Florida is generally a third-degree felony (up to 5 years in prison and a $5,000 fine). Simple possession of marijuana for personal use (under 20 grams) is a first-degree misdemeanor punishable by up to 1 year in jail and a $1,000 fine.

Possession with Intent to Sell

If someone is charged with possession with intent to sell/deliver/manufacture (PWITS), the penalties are significantly heavier. PWITS is generally considered a second-degree felony in Florida, punishable by up to 15 years in prison and a $10,000 fine. If within 1,000 feet of a school or park, this is a first-degree felony (up to 30 years in prison and a $10,000 fine).

As there isn’t a flashing red light above someone’s head that says to officers “I possessed these drugs with the intent to sell and/or deliver them” when someone is arrested, law enforcement is generally forced to infer that intent.

In distinguishing PWITS from simple possession, courts and police often consider:

• The quantity of drugs found (larger quantities may indicate PWITS)
• Packaging (small baggies, vials, etc.)
• Presence of large amounts of cash with the drugs
• Paraphernalia (especially items such as scales, bag-sealing equipment, ledgers, baggies)
• Statements/admissions by the defendant
• Location (if the drugs are found in or near a residence known for drug distribution)
• Communications of the defendant (texts or calls setting up drug sales)
• Observations by police

But even if circumstantial evidence indicates someone is in possession of drugs with intent to sell, manufacture or deliver them, this does not make it easy for the State to prove PWITS. For someone to be convicted of PWITS, the State must exclude every “reasonable hypothesis of innocence” beyond a reasonable doubt. Glenn v. State, 824 So.2d 1046, 1049 (Fla. 4th DCA 2002) 

This does not necessarily mean “innocence” in the sense that someone did not have drugs at all. Rather, Glenn holds that for someone to be specifically convicted of PWITS rather than simple possession, the State must definitively prove through either direct or circumstantial evidence that the objective of the defendant was to sell, manufacture and/or deliver the drugs. 

Example Case

A key case on this issue is Lesane v. State, 895 So. 2d 1231 (Fla. 4th DCA 2005). Lesane was arrested and convicted of possession with intent to sell/deliver/manufacture cocaine after 1.8 grams of cocaine, $114, and an empty white superglue tube were recovered from his person.

Lesane appealed, arguing that the State had failed as a matter of law to exclude his reasonable hypothesis that the cocaine was for personal use. He noted that the amount of money found on his person and the quantity of drugs found were not inconsistent with personal use – and that as a result, a PWITS conviction could not be supported.

The court agreed. It held that the unremarkable amount of money, the relatively small amount of cocaine, and the tube did not provide sufficient evidence to support a PWITS conviction as a matter of law. Moreover, none of the officers who claimed the evidence proved Lesane intended to sell the drugs was qualified as an expert at trial, undercutting the strength of the State’s case. Lesane at 1234.

Lesane cited many other cases on this issue. In McCullough v. State, the 4th District Court of Appeal held that the evidence was insufficient as a matter of law to support McCullough’s PWITS conviction. Police arrested McCullough in a large group of people and found fifteen cocaine rocks in a canister, without any money or paraphernalia. McCullough v. State, 541 So.2d 720, 721 (Fla. 4th DCA 1989) 

In Glenn v. State, the 4th DCA reached a similar conclusion after Glenn was arrested with four grams of cocaine on his person while standing alone near a convenience store. As Glenn told officers he intended to smoke the crack cocaine and no sale had been observed, the court held that his PWITS conviction could not stand as a matter of law. 

The 4th DCA did the same in Sampson v. State, where Sampson was arrested for PWITS cocaine and marijuana. Approximately 13 grams of cocaine were found in Sampson’s fanny pack – but no evidence other than quantity of intent to sell or deliver was provided. 

The 4th DCA reversed Sampson’s conviction on the grounds that the State did not defeat his argument that the drugs were for personal use. No evidence of the presence of paraphernalia or a transaction involving the drugs was offered at trial. Sampson v. State, 863 So.2d 404 (Fla. 4th DCA 2003)

Perhaps the most important line in Lesane distinguishing between simple possession and PWITS is:

“In considering what type of circumstantial proof is necessary to prove intent to sell, quantity and value may be sufficient when the quantity is substantial; however, in cases where small amounts of narcotics are found, courts generally require other proof of suspicious circumstances, drug paraphernalia available, or other evidence which circumstantially would indicate intent to sell.” Lesane in 1233.

This is Florida law in a nutshell. If a small amount of a controlled substance is discovered, courts generally require significant corroborating evidence of intent to sell, deliver or manufacture for a PWITS conviction. In such cases, personal use is assumed, and it is tougher for the State to prove intent to do something additional with the substances (sell/manufacture/deliver).

However, this becomes less difficult to establish in cases where the quantity and value of the substance found is large – especially if it is discovered alongside paraphernalia and significant amounts of cash. Still, the State retains the burden to exclude “every reasonable hypothesis of innocence” (including claims of personal use) before a PWITS conviction can occur.

If someone is charged with possession with intent to sell/deliver/manufacture a controlled substance in Florida, defenses may include: 

• Lack of intent to sell or deliver
• Lack of knowledge of the substance
• Unlawful search or seizure (motions to suppress)
• Constructive possession (State must prove knowledge and ability to control the drugs)
• Entrapment (objective or subjective)
• Procedural defenses (improper chain of custody, Miranda challenges, etc.)
• Mischaracterization of innocent evidence as paraphernalia (bags, spoons, etc.)

In sum, there is no magic test under Florida law to distinguish simple possession of a controlled substance from possession with intent to sell, deliver, or manufacture it. However, police may rely on either direct or circumstantial evidence to establish a defendant had the intent to sell, deliver, or manufacture.

Courts and police most often consider factors such as the quantity of drugs found, packaging or lack thereof, the presence or absence of paraphernalia, statements or admissions by a defendant, evidence of involvement in drug deals (phone calls, texts, officer observations), and more. 

The more of these indicators tilt in favor of PWITS, the more likely someone will be to face such a charge. But a large amount of drugs or the presence of paraphernalia does not automatically mean someone is guilty, in the absence of additional corroborating evidence of intent to sell, manufacture, or deliver.

Because the State must prove intent to sell, deliver or manufacture beyond a reasonable doubt, contacting an experienced and aggressive Florida defense attorney can significantly improve the odds of defeating a PWITS charge.

In the event someone is charged with a drug-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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