PATRICK B. KENNY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenny was charged with possession of cannabis in excess of one hundred pounds. He moved to dismiss for failure to establish a prima facie case, arguing the state could not prove the seized substance exceeded the statutory threshold when excluding mature stalks and stems. The court affirmed his conviction, holding that representative samples containing 20-120 grams of cannabis from a 1,589-pound seizure established sufficient prima facie evidence of possession exceeding one hundred pounds.
The court held that the facts were sufficient to establish a prima facie case of possession of more than one hundred pounds of cannabis. Because representative samples from the massive 1,589-pound seizure each contained 20 to 120 grams of cannabis, it could logically be concluded that Kenny possessed more than one hundred pounds of cannabis exclusive of mature stalks and stems.
[1] A motion to dismiss an information under Fla.R.Crim.P. …
[2] A prima facie case for possession of cannabis in excess of a statutory weight threshold may be established by testing representative samples from a large quantity of seiz…
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Join FLexlaw to unlock all legal intelligence“Purifoy, supra, held that in a case charging possession of more than five grams of cannabis, the state has the burden of proving that the substance possessed by the defendant exceeds the statutory threshold exclusive of mature stalks and stems, which by definition are not prohibited substances.”
Establishes the legal standard for proving cannabis possession cases—the burden to exclude non-prohibited stalks and stems from the weight calculation.
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Join FLexlaw to unlock all legal intelligencePolice seized twenty-four bags of a substance weighing 1,589 pounds in aggregate from Kenny. Representative samples from each bag were tested by the s…
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BOYER, Acting Chief Judge.
Kenny, charged with possession of cannabis in excess of one hundred pounds contrary to Section 893.13(l)(a)2, Florida Statutes (1977), moved to dismiss the information pursuant to Fla.R.Crim.P. 3.190(c)(4) asserting that the undisputed material facts failed to establish a prima facie case. The state, in its traverse filed pursuant to Fla.R. Crim.P. 3.190(d), presented additional facts and denied that the undisputed material facts did not establish a prima facie case. Kenny contends the trial court erred in denying his motion to dismiss. We disagree and affirm the judgment of conviction which was entered following Kenny’s plea of nolo contendere to the charge.
The facts as established by the motion to dismiss and the state’s traverse revealed that twenty-four bags of a substance, weighing 1,589 pounds in the aggregate, were seized from Kenny. Representative samples from each bag were delivered by police officers to the state’s expert witness. The remaining portions of the substance were destroyed. Based upon his tests and analyses, the state’s expert witness concluded each of the twenty-four samples tested contained from 20 to 120 grams of cannabis.1
Relying on Purifoy v. State, 359 So. 2d 446 (Fla.1978),2 Kenny asserts a prima facie case was not established arguing the state could not prove that Kenny possessed in excess of one hundred pounds of cannabis as that term is defined by Section 893.02(2), Florida Statutes (1977). Purifoy, supra, held that in a case charging possession of more than five grams of cannabis, the state has the burden of proving that the substance possessed by the defendant exceeds the statutory threshold exclusive of mature stalks and stems, which by definition are not prohibited substances.
The facts herein were sufficient to present a prima facie case that Kenny possessed over one hundred pounds of canna bis. Each of the representative samples tested by the expert witness contained from 20 to 120 grams of cannabis. Based upon this fact, it could logically be concluded that Kenny possessed more than one hundred pounds of cannabis exclusive of mature stalks and stems since the amount of substance possessed by Kenny was so great.
Accordingly, Kenny’s conviction for possession of more than one hundred pounds of cannabis is affirmed.
MILLS and BOOTH, JJ., concur. . One hundred pounds is the equivalent of 45,-360 grams.
. Analogous are Fotianos v. State, 329 So. 2d 397 (Fla. 1st DCA 1976) and Wright v. State, 351 So. 2d 1127 (Fla. 1st DCA 1977).
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Ross v. State, 528 So. 2d 1237 (Fla. 3d DCA 1988)…Velunza v. State, 504 So. 2d 780, 781 (Fla. 3d DCA 1987). It is also clear that the subject cocaine or mixture may be contained, as here, in a series of separately wrapped packets which, in toto, weigh twenty-eight grams or more. See Kenny v. State, 382 So. 2d 304 (Fla. 1st DCA 1978). The state, however, has the burden of proof on this issue, see Purifoy v. State, 359 So. 2d 446 (Fla.1978), and must, accordingly, establish that each of the subject packets contains cocaine or a mixture thereof which in the agg…1 / 3
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Jordan v. State, 419 So. 2d 363 (Fla. 1st DCA 1982)…ert. den., 374 So. 2d 101 (Fla. 1979), U.S. cert. den., 444 U.S. 839, 100 S.Ct. 78, 62 L.Ed.2d 51 (1970), (state did not meet its burden under Purifoy where matter weighed 47.2 grams and included seeds, stems and certain sticks); and Kenny v. State, 382 So. 2d 304 (Fla. 1st DCA 1978), (evidence substance weighed 1,589 pounds sufficient on which to base conclusion that defendant possessed more than 100 pounds of cannabis, exclusive of mature stalks and stems). . In United States v. Barker, 553 F. 2d 1013 (6th…
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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
- Purifoy v. State, 359 So. 2d 446 (Fla. 1978)
- Wright v. State, 351 So. 2d 1127 (Fla. 1st DCA 1977)
- Sasnett v. State, 329 So. 2d 397 (Fla. 1st DCA 1976)
- Theo George Fotianos v. State, 329 So. 2d 397 (Fla. 1st DCA 1976)