SAM LEE DORSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dorsey appealed his conviction for unlawful possession of cannabis exceeding five grams, arguing the state failed to prove the quantity exceeded five grams after excluding non-prohibited stems and stalks. The First District Court of Appeal affirmed, holding that the state met its burden of proof through expert testimony and representative sampling.
Yes, the state met its burden of proof. The court affirmed the conviction, finding that the facts were distinguishable from Purifoy due to the larger total quantity (24.2 grams), the expert testimony regarding THC contamination, and the uncontradicted chemist's opinion that the tested sample was representative of the untested remainder.
[1] The state bears the burden of proving that the quantity of cannabis in a defendant's possession exceeds five grams after non-prohibited stems and stalks are excluded.
[2] Expert testimony that a tested portion of cannabis is representative of the entire untested quantity is sufficient to prove the weight of the controlled substance.
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Join FLexlaw to unlock all legal intelligence“the state has the burden of proving that the quantity found in a defendant's possession must exceed five grams after stems and stalks have been removed”
Establishes the legal standard that Dorsey relied upon from Purifoy v. State
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Join FLexlaw to unlock all legal intelligenceDorsey was found in possession of 24.2 grams of cannabis material. A chemist tested half a gram and testified it was representative of the remaining 2…
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ERVIN, Judge.
Dorsey’s appeal from his conviction for unlawful possession of more than five grams of cannabis urges that the lower court erred in failing to grant his motion for judgment of acquittal since the state failed to prove the cannabis, after excluding non-prohibited stems and stalks,1 was in excess of five grams. He relies upon Purifoy v. State, supra note 1, which held that the state has the burden of proving that the quantity found in a defendant’s possession must exceed five grams after stems and stalks have been removed. We conclude the state met its burden and that the facts in Purifoy are easily distinguished from those here. In Purifoy, the aggregation of both prohibited cannabis and non-prohibited stalks and stems weighed only 7.05 grams. Here the total amount was 24.2 grams. In Purifoy there was no expert testimony, as here, that the controlled substance contained in cannabis, tetrahydroeannabinols,2 when ground into small refined parts, contaminated the non-prohibited matter. Finally, the chemist’s opinion testimony was uncontradicted that the half gram which he tested was representative of the remaining untested 23.7 grams. See Ansley v. State, 302 So. 2d 797 (Fla. 1st DCA 1974) and Wright v. State, 351 So. 2d 1127 (Fla. 1st DCA 1977), affirming convictions upon similar testimony.
AFFIRMED.
SMITH, J., concurs.
MILLS, Acting C. J., dissenting.
. Section 893.02(2), Fla.Stat. (1977), excludes from its definition of cannabis mature stalks. Purifoy v. State, 359 So. 2d 446 (Fla.1978), held that the stems of the plant are stalks within the purview of the statute.
. This is a Schedule I controlled substance under § 893.03(1 )(c) 17.
MILLS, Acting Chief Judge,
dissenting:
I dissent. I would reverse on authority of Purifoy v. State, 359 So. 2d 446 (Fla.1978).
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Citator
Cited By
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Williams v. State, 377 So. 2d 755 (Fla. 1st DCA 1979)…available. The court concluded that the state’s failure was unavoidable and denied defendant’s motion. A review of the entire record affirmatively shows defendant was not prejudiced. Richardson v. State, 246 So. 2d 771 (Fla.1971), Dorsey v. State, 367 So. 2d 692 (Fla. 1st DCA 1979). In Dorsey, supra, the marijuana weighed 24.2 grams. The defendant argued that the state had failed to prove he possessed more than five grams of marijuana because the state had not distinguished between the prohibited and nonpro…
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Leavitt v. State, 369 So. 2d 993 (Fla. 1st DCA 1979)…oncur in all portions of the majority’s opinion with the exception of that holding it was not proven beyond a reasonable doubt that appellant was guilty of possession of more than five grams of cannabis. I feel the facts here, as in Dorsey v. State, 367 So. 2d 692 (Fla. 1st DCA 1979), are sufficiently distinguishable from those which existed in Purifoy v. State, 359 So. 2d 446 (Fla.1978). I would affirm the order of probation in its entirety.…
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Sims v. State, 402 So. 2d 459 (Fla. 4th DCA 1981)…nce it may well have contained a significantly smaller percentage of seeds, the sample itself was not shown to be a fair representation of the entire quan [*461] tity.3 In both of these respects, this case differs significantly from Dorsey v. State, 367 So. 2d 692 (Fla. 1st DCA 1979), upon which the state relies almost exclusively. In Dorsey, the quantity of cannabis involved — which, unlike the present instance, was scientifically measured — was almost five times the prohibited amount (24.2 grams vs. five g…
Authorities Cited
- Purifoy v. State, 359 So. 2d 446 (Fla. 1978)
- Ansley v. State, 302 So. 2d 797 (Fla. 1st DCA 1974)
- Wright v. State, 351 So. 2d 1127 (Fla. 1st DCA 1977)