Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) or any mixture containing (specific substance alleged) is a controlled substance.
To prove the crime of Trafficking in Illegal Drugs, the State must prove the following four elements beyond a reasonable doubt:
1. (Defendant) knowingly
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance.
2. The substance was [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [(specific substance alleged)] [a mixture containing [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [herion] [(specific substance alleged)]].
3. The quantity of the substance involved was 4 grams or more.
See State v. Dominguez, 509 So. 2d 917 (Fla. 1987).
4. (Defendant) knew that the substance was [[morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [(specific substance alleged)] [a mixture containing [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [(specific substance alleged)]].
If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., the following bracketed language should be given instead of element 4 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold (specific substance alleged), the alternate element 4 would be given.
[4. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla. Stat.), but actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] (specific substance alleged) or a mixture containing (specific substance alleged).]
Definitions. Give as applicable.
Sell.
“Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.
Manufacture. § 893.02(13)(a), Fla. Stat.
“Manufacture” means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis.
Deliver. § 893.02(5), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.
Possession.
To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
Actual possession means:
a. The controlled substance is in the hand of or on the person, or
b. The controlled substance is in a container in the hand of or on the person, or
c. The controlled substance is so close as to be within ready reach and is under the control of the person.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.
Constructive possession means the controlled substance is in a place over which the (defendant) has control, or in which the (defendant) has concealed it.
In order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the (defendant) does not have control, the State must prove the (defendant’s) (1) control over the controlled substance and (2) knowledge that the controlled substance was within the (defendant’s) presence.
Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.
If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.
If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed.
Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of (insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find (defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.
See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Illegal Drugs, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:
Enhanced penalty. Give if applicable up to extent of charge.
a. [The quantity of the substance involved was 4 grams or more but less than 14 grams.]
b. [The quantity of the substance involved was 14 grams or more but less than 28 grams.]
c. [The quantity of the substance involved was 28 grams or more but less than 30 kilograms.]
d. [The quantity of the substance involved was 30 kilograms or more.]
Lesser Included Offenses
TRAFFICKING IN ILLEGAL DRUGS — 893.135(1)(c)1 and 2 |
CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
Trafficking offenses requiring lower quantities of illegal drugs |
| 893.135(1)(c)1 | 25.11 |
| Attempt (but not conspiracy), except when delivery is charged | 777.04(1) | 5.1 |
| If sale, manufacture or delivery is charged | 893.13(1)(a) | 25.2 |
| If purchase is charged | 893.13(2)(a) |
|
| Bringing same illegal drug as charged into state | 893.13(5) |
|
| Possession of same illegal drug | 893.13(6)(a) |
|
