STATE OF FLORIDA, APPELLANT,
v.
TYRONE E. MCDANIEL, APPELLEE
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Florida appeals a trial court's dismissal of an information charging defendant with cannabis possession with intent to sell and simple possession. The court reversed, holding that possession of cannabis with intent to sell constitutes a third-degree felony under Florida law, giving the trial court subject matter jurisdiction.
The court held that possession of cannabis with intent to sell, regardless of amount, violates section 893.13(1)(a)2 and constitutes a third-degree felony, giving the circuit court subject matter jurisdiction. The circuit court also has jurisdiction over the misdemeanor simple possession charge contained in the same information.
[1] A charge of possession of cannabis with intent to sell, regardless of the amount of cannabis, constitutes a felony.
[2] A circuit court has subject matter jurisdiction over felony charges.
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“it is a violation of section 893.13(1)(a)2 to possess with intent to sell any amount of cannabis and that such a violation is a third degree felony”
Establishes the key holding that intent to sell, regardless of amount, makes the offense a felony
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe state filed an information with two counts against Tyrone E. McDaniel: possession of cannabis with intent to sell (section 893.13(1)(a)2) and simp…
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SCHOONOVER, Judge.
The state appeals a trial court order dismissing an information filed against the defendant, Tyrone E. McDaniel, on the ground that the court lacked subject matter jurisdiction. We reverse.
The state filed a two count information charging the defendant with possession of cannabis with intent to sell in violation of section 893.13(1)(a)2, Florida Statutes (1985) and with possession of cannabis in violation of section 893.13(1)(f), Florida Statutes (1985). Neither count of the information specified the amount of cannabis involved and did not specifically mention consideration. The defendant, relying on State v. Johnson, 354 So. 2d 902 (Fla. 1st DCA 1978), and Franklin v. State, 346 So. 2d 137 (Fla. 1st DCA 1977), filed a motion to dismiss the information on the ground that the trial court lacked subject matter jurisdiction because the information did not allege a felony. Although the trial judge disagreed with the holdings in Johnson and Franklin, he felt that he was bound by them and, accordingly, granted the motion to dismiss. This timely appeal followed. The state concedes that since the possession of cannabis charge did not specify the amount of cannabis the defendant was alleged to have possessed, it did not charge a felony. The state contends, however, that the possession of cannabis with intent to sell charge does allege a felony. We agree. Since the trial court entered its order in this case, this court held in State v. McGee, 494 So. 2d 255 (Fla. 2d DCA 1986), that it is a violation of section 893.13(1)(a)2 to possess with intent to sell any amount of cannabis and that such a violation is a third degree felony. The circuit court, therefore, has jurisdiction to consider the possession with intent to sell charge and pursuant to section 26.012(2)(d), Florida Statutes (1985) also has jurisdiction to consider the misdemeanor charge contained in the same information. We recognize, as we did in McGee, that our holding is in conflict with Franklin.
We, therefore, reverse the trial court’s order dismissing the information and remand with directions to reinstate the information.
Reversed and remanded.
SCHEB, A.C.J., and FRANK, J., concur.
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Citator
Cited By
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Mandell C. McGEE v. State, 509 So. 2d 1102 (Fla. 1987)…in Franklin and approve the Second District Court’s decision in the instant case. It is so ordered. McDonald, C.J., and EHRLICH, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. * C.P. v. State, 505 So. 2d 616 (Fla. 3d DCA 1987); State v. McDaniel, 508 So. 2d 371 (Fla. 2d DCA 1987).…
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McDANIEL v. State, 515 So. 2d 985 (Fla. 1987)…OVERTON, Justice. This is a petition to review State v. McDaniel, 508 So. 2d 371 (Fla. 2d DCA 1987), which relied on State v. McGee, 494 So. 2d 255 (Fla. 2d DCA 1986), in holding that possession with intent to sell any amount of cannabis is a third-degree felony under section 893.13(l)(a)(2), Florida Statutes (1985). In relying…
Authorities Cited
- Franklin v. State, 346 So. 2d 137 (Fla. 1st DCA 1977)
- State v. Mandell C. McGEE, 494 So. 2d 255 (Fla. 2d DCA 1986)
- Jones v. State, 354 So. 2d 902 (Fla. 4th DCA 1978)