DEBBIE LYNN MARSHALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Debbie Lynn Marshall was convicted of unlawfully delivering hashish and sentenced as a felon. On appeal, she argued the information failed to charge a felony, but the court affirmed, holding that hashish is statutorily distinguished from marijuana and constitutes a felony delivery regardless of quantity.
The court affirmed the conviction and felony sentence, holding that hashish is statutorily categorized separately from marijuana under Florida law and that delivery of any amount constitutes a third-degree felony. The omission of descriptive language in the information was not a fundamental defect requiring reversal.
[1] An information charging the unlawful delivery of hashish sufficiently alleges a felony without explicitly stating it is an extracted resin, provided the defendant is not…
[2] The unlawful delivery of hashish, a resin extracted from cannabis, constitutes a felony under Florida Statute 893.13(1)(a)(2) due to its classification in Florida Statute…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 893.13(1)(a)(2) establishes that the unlawful delivery of any amount of cannabis, commonly known as hashish, is a felony of the third degree because of its inclusion in section 893.03(1)(c), Florida Statutes.”
Establishes the statutory basis for treating hashish delivery as a felony regardless of quantity, distinguishing it from marijuana.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMarshall was charged with unlawfully delivering cannabis (hashish) on March 29, 1977, in violation of Florida Statute 893.13(1)(a). She entered a plea…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Felony Vs. Misdemeanor Sentencing cases and more on FLexlaw
UPCHURCH, Judge.
The Appellant was convicted by a jury under an information which charged that:
Debbie Lynn Marshall, on the 29th day of March, 1977, in said County and State, did in violation of Florida Statute 893.-13(l)(a), unlawfully, deliver CANNABIS, commonly known as Hashish, a substance controlled by Florida Statute 893.-08(l)(c).
Two points have been raised on appeal. Our opinion will be limited to the first point. Point II is disposed of by our opinion in Murray v. State, 378 So. 2d 111 (Fla. 5th DCA 1980).
Appellant contends that the court could not sentence Appellant as a felon when the information failed to charge a felony. The record reflects that Appellant entered a plea of not guilty, went to trial and moved for a new trial without objection to the information, and made no motion to correct or reduce sentence.
In Patterson v. State, 313 So. 2d 712 (Fla.1975), defendant was convicted for the sale of a dangerous drug. The information alleged that the defendant did “unlawfully and knowingly sell and dispense a certain dangerous drug to wit: Cannabis, commonly known as Marijuana, contrary to the provisions of Section 404.02(1), Florida Statutes.’’ The court found as follows:
We have carefully examined the briefs and the record in the case and have heard oral argument by the parties. We con-elude that the Petitioner is correct in his argument (1) that the information was insufficient to charge a felony since it failed to allege (a) that he had been previously convicted of a violation of the Drug Abuse Law, or (b) that the delivery was for consideration, or (c) that the amount of marijuana delivered exceeded five grams; and (2) that under these circumstances, the case should be remanded for sentencing under the misdemeanor provision of the Statute.
The Patterson case cited with approval Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972); cert. discharged 283 So. 2d 99 (Fla.1973). Pope also held that in order to charge a felony under section 404.15(1), Florida Statutes, it was necessary to allege facts making the “exception” inapplicable: that the offense of delivery or possession was not a first offense, or that more than the five grams of cannabis was involved. Section 404.15(1) is now found in section 893.13(1)(f), but with the following additional sentence:
For the purposes of this section, “cannabis” shall not include the resin extracted from the plant Cannabis sativa, L, or any compound manufacture, salt, derivative, mixture, or preparation of such resin.
See also State v. Stewart, 358 So. 2d 583 (Fla. 2d DCA 1978).
We do not find Patterson, Stewart, or Pope controlling because the substance involved was marijuana (Cannabis sativa) and not hashish as in the case now before us. The case, Amato v. State, 296 So. 2d 609 (Fla. 3d DCA 1974), recognized that hashish is extracted resin of cannabis. The added sentence in section 893.13(1)(f) quoted above, takes hashish out of the misdemeanor category established by the first sentence of that section. The misdemeanor exception is applicable only to Cannabis sa-tiva, L, commonly known as marijuana, and not to cannabis commonly known as hashish. Section 893.13(1)(a)(2) establishes that the unlawful delivery of any amount of cannabis, commonly known as hashish, is a felony of the third degree because of its inclusion in section 893.03(1)(c), Florida Statutes.
While it would undoubtedly be better form to include in an information after hashish the phrase, “a resin extracted from the plant Cannabis sativa, L,” in this instance it was not necessary. The omission is not such a fundamental defect as would render the information challengeable for the first time on appeal. A variance in an information is fatal only if the record reveals a possibility that the defendant may have been misled or embarrassed in the preparation or presentation of his defense. Sharp v. State, 328 So. 2d 503 (Fla. 3d DCA 1976).
The record contains nothing whatever to indicate that the Appellant did not know that she was being tried for a felony, or that she was not aware that the “cannabis” involved was “hashish.”
AFFIRMED.
DAUKSCH, C. J., and SHARP, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Cotton v. State, 395 So. 2d 1287 (Fla. 1st DCA 1981)…tion of Section 794.011(3), but affirmatively demonstrates the opposite. Accordingly, the surplusage in the information was not such a fundamental defect as to render the information challengeable for the first time on appeal. See Marshall v. State, 381 So. 2d 276 (Fla. 5th DCA 1980). We turn now to the verdict rendered by the jury. A verdict is not necessarily invalid for uncertainty. Yarborough v. State, 94 Fla. 143, 114 So. 237 (1927). It should be considered with respect to the indictment or information…
-
Ingleton v. State, 700 So. 2d 735 (Fla. 5th DCA 1997)…State, 651 So. 2d 244, 245-46 (Fla. 3d DCA 1995); Rose v. State, 507 So. 2d 630, 631-32 (Fla. 5th DCA 1987). However, a variance is fatal only if prejudicial. See, e.g., Cannon v. State, 91 Fla. 214, 220, 107 So. 360, 363 (1926); Marshall v. State, 381 So. 2d 276, 278 (Fla. 5th DCA 1980); Sharp v. State, 328 So. 2d 503, 504-05 (Fla. 3d DCA 1976); Howlett v. State, 260 So. 2d 878, 880 (Fla. 4th DCA 1972); Fitzgerald v. State, 227 So. 2d 45, 46 (Fla. 3d DCA 1969). An example is Grissom v. State, 405 So. 2d 291…
-
Retherford v. State, 386 So. 2d 881 (Fla. 1st DCA 1980)…he subsection is to make delivery or possession of less than 5 grams of cannabis, by a first offender, a misdemeanor except when the cannabis is in its resin form. Possession or delivery then becomes a felony regardless of amount. Marshall v. State, 381 So. 2d 276 (Fla. 5th DCA 1980). The subsection merely delineates when the offender can be sentenced for a felony as opposed to a misdemeanor. In this instance the distinction is academic in that the appellant was convicted of possession of more than 5 grams of…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972)
- Amato v. State, 296 So. 2d 609 (Fla. 3d DCA 1974)
- State v. Pope, 283 So. 2d 99 (Fla. 1973)
- Murray v. State, 378 So. 2d 111 (Fla. 5th DCA 1980)
- Sharp v. State, 328 So. 2d 503 (Fla. 3d DCA 1976)
- Patterson v. State, 313 So. 2d 712 (Fla. 1975)
- State v. Stewart, 358 So. 2d 583 (Fla. 2d DCA 1978)