HENRY MOORE TURNER, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Henry Moore Turner, Jr. was convicted of possessing a drug paraphernalia device (roachclip) with intent to use it for administering controlled substances. The Florida District Court of Appeal affirmed the conviction but reversed the felony classification, holding that because the only marijuana evidence was residue on the device (less than five grams), the offense constituted a misdemeanor rather than a felony.
Turner's conviction for possessing drug paraphernalia stands because the marijuana residue on the device provided sufficient evidence for the jury to infer intent to use the device for smoking marijuana, independent of convictions on other counts. However, the conviction is a misdemeanor of the first degree rather than a felony, because the only marijuana evidence pertaining to the device was the residue, which would constitute less than five grams and thus a misdemeanor-level offense.
[1] Possession of paraphernalia with the intent to use it for unlawfully administering a controlled substance can be proven by evidence of residue on the paraphernalia, even…
[2] Acquittal on charges related to possession or delivery of a controlled substance does not preclude a conviction for possession of paraphernalia with intent to use, as the…
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“The device (a roachclip taken from the pocket of appellant's jacket) had marijuana residue on it. Such evidence was sufficient for the jury to infer appellant's intent to use the device for smoking marijuana.”
Establishes that marijuana residue on paraphernalia is sufficient evidence of intent to use the device for controlled substance administration, independent of other convictions.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTurner was convicted under Florida Statutes § 893.13(3)(a)(4) for possessing a roachclip taken from his jacket pocket that had marijuana residue on it…
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McCORD, Judge.
Appellant was convicted of violating § 893.13(3) (a) (4), Florida Statutes, which provides as follows:
“To possess, have under his control, or deliver any device, contrivance, instru ment, or paraphernalia with the intent that said device, contrivance, instrument, or paraphernalia be used for unlawfully-administering any controlled substance.”
He was acquitted on the three remaining counts — (1) delivery of marijuana to a person under the age of 18 years, (2) possession of more than five grams of marijuana, and (3) sale of marijuana. § 893.-13(3) (b), Florida Statutes, provides as follows :
“Any person who violates the provisions of paragraph (a) shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083 or § 775.084, except that when the controlled substance is one that the penalty for possession of which is a misdemeanor, then the penalty under paragraph (a) shall be a misdemeanor of the first degree punishable as provided in § 775.082 or § 775.083.”
Appellant contends that his conviction under Count IV must fall since he was acquitted of the first three counts; that having been acquitted of the first three counts, there is no evidence of intent in connection with the fourth count. We disagree. The device (a roachclip taken from the pocket of appellant’s jacket) had marijuana residue on it. Such evidence was sufficient for the jury to infer appellant’s intent to use the device for smoking marijuana.
Appellant also argues that since there was no conviction for possession of marijuana, there was no basis for the trial court to determine under subsection (3) (b) above whether the conviction was a felony or a misdemeanor. While we disagree with appellant’s conclusion, we find that the trial court erred in considering the offense a felony rather than a misdemeanor. As stated above, the marijuana device which appellant was convicted of possessing had marijuana residue on it. Since this was the only evidence of marijuana which pertained to the device and it would amount to less than five grams of marijuana (possession of which would constitute a misdemeanor), the offense of which appellant was found guilty was a misdemeanor of the first degree rather than a felony under subsection (3) (b) above.
We have considered appellant’s remaining contentions and find them without merit.
The cause is remanded to the trial court with directions to vacate the judgment and sentence and enter a new judgment and sentence for the misdemeanor of the first degree.
BOYER, C. J., and RAWLS, J., concur.
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Grady Lee Merit v. State, 342 So. 2d 993 (Fla. 4th DCA 1977)…rcumstances of this case, the maximum penalty allowable under Section 893.13(3)(b), Florida Statutes 1975, was that for a misdemeanor of the first degree, as provided in Section 775.082 or Section 775.083, Florida Statutes 1975. See Turner v. State, 329 So. 2d 360 (Fla. 1st DCA 1976). On remand the trial court should amend the period of probation of appellant Dorothy Battle Merit to accord with the holding in Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976). AFFIRMED IN PART and REVERSED IN PART, and REMAND…