BILLY EUGENE RETHERFORD, A/K/A BOE LEE HARPER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Billy Retherford was convicted of three drug offenses, including separate counts for possession of marijuana and hashish with intent to distribute. The appellate court held that marijuana and hashish are both forms of cannabis under Florida law and therefore constitute the same offense, making the imposition of separate sentences illegal.
Possession of hashish and possession of marijuana constitute the same crime—possession of cannabis—because hashish is the extracted resin of Cannabis sativa and falls within the statutory definition of cannabis. Therefore, imposing two separate sentences for these offenses is illegal, and the sentence for possession of hashish must be vacated.
[1] Possession of hashish is punishable as possession of cannabis because hashish is defined as the resin extracted from the plant Cannabis sativa.
[2] A defendant cannot be separately sentenced for possession of marijuana and possession of hashish when both offenses stem from the possession of cannabis in different form…
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Join FLexlaw to unlock all legal intelligence“"Cannabis" means all parts of the plant of the species Cannabis sativa, L., including all varieties thereof, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.”
Statutory definition of cannabis that encompasses hashish as extracted resin, establishing that marijuana and hashish are the same substance under law.
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with three counts: possession of barbiturates with intent to distribute, possession of marijuana with intent to distribute, and …
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SHAW, Judge.
Appellant was charged in a three-count information with the possession of barbiturates with intent to distribute, possession of marijuana with intent to distribute, and possession of hashish with intent to distribute in violation of Section 893.13, Florida Statutes. The trial court imposed separate, concurrent five-year sentences on each of the three counts.
Appellant contends that the possession of hashish and the possession of marijuana are the same crime, to wit: the possession of cannabis. To impose two separate sentences for the single offense is therefore illegal. We agree.
The applicable statute defines cannabis as:
“Cannabis” means all parts of the plant of the species Cannabis sativa, L., including all varieties thereof, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. It does not include the mature stalks of the plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake; or the sterilized seed of the plant which is incapable of germination. Section 893.02(2), Florida Statutes, (1977).
Hashish, by name, is not an enumerated controlled substance listed in Chapter 893. Casey v. State, 330 So. 2d 41 (Fla. 1st DCA 1976). It is, however, the extracted resin of the plant Cannabis sativa, and fits within the above definition of “cannabis”. It appears, therefore, that possession of hashish is punishable only by virtue of the fact that it is, by definition, cannabis.
Section 893.13(l)(f), Florida Statutes (1977), is a penalty section which provides that:
If the first offense is the possession or delivery without consideration of not more than 5 grams of cannabis, that person shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 and s. 775.083. For purposes of this subsection, “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.
The net effect of the 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 marijuana and possession of hashish. He may, therefore, be sentenced as a felon, but not for two separate felonies resulting from possession of cannabis in two different forms. Brainard v. State, 380 So. 2d 1302 (Fla. 2d DCA 1980); accord, Amato v. State, 296 So. 2d 609 (Fla. 3d DCA 1974).
Accordingly, we vacate appellant’s sentence for possession of hashish with intent to distribute and remand to the trial court for proceedings consistent with this opinion.
McCORD and BOOTH, JJ., concur.
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United States v. Jackson, 36 F.4th 1294 (11th Cir. 2022)…21-13963 Date Filed: 06/10/2022 Page: 16 of 23 16 Opinion of the Court 21-13963 hashish were defined as the same controlled substance under Florida law" in that both fell under the definition of "cannabis." Id. at 1183 (citing Retherford v. State, 386 So. 2d 881, 882 (Fla. 1st DCA 1980)). Guillen establishes that the enumerated categories of “controlled substances” in Florida's drug Schedules are alternative “elements." For that reason, we may consult Shepard documents to identify the "controlled substance…
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Guillen v. U.S. Attorney General, 910 F.3d 1174 (11th Cir. 2018)…. Citing Jenkins, the court approved the trial court's conclusion "that possession of eight different controlled substances constituted eight separate offenses." Id. at 675. And providing perhaps even more probative evidence, in Retherford v. State, 386 So. 2d 881, 882 (Fla. Dist. Ct. App. 1980), the First District Court of Appeal rejected separate sentencing for possession of marijuana and possession of hashish. The reason for this ruling was that marijuana and hashish were defined as the same controlled sub…
Authorities Cited
- Amato v. State, 296 So. 2d 609 (Fla. 3d DCA 1974)
- Brainard v. State, 380 So. 2d 1302 (Fla. 2d DCA 1980)
- Marshall v. State, 381 So. 2d 276 (Fla. 5th DCA 1980)
- Casey v. State, 330 So. 2d 41 (Fla. 1st DCA 1976)