JOHN LEE PURIFOY, APPELLANT (DEFENDANT),
v.
STATE OF FLORIDA, APPELLEE (STATE)
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Florida appellate court affirmed conviction for possession of more than five grams of cannabis, holding that the defendant bore the burden of proving that excluded plant parts reduced the weight below the statutory threshold.
The defendant bears the burden of proving that excluded plant parts reduce the total weight of cannabis below the statutory threshold, and failure to meet this burden supports conviction.
[1] Under Florida Statutes Section 893.10(1), the burden rests upon the defendant to prove that excluded plant parts reduce the weight of cannabis below the statutory thresho…
Previewing 1 of 1 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 893.10(1), Florida Statutes (1975), expressly provides that it is not necessary for the State to negate any exception at trial, the burden of proof being upon the person claiming the exception.”
Court explaining the statutory allocation of burden regarding excluded plant parts
Purifoy was found guilty of possessing more than five grams of cannabis; the State's evidence showed 7.05 grams including a piece of stem.…
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MILLS, Judge.
The jury found Purifoy guilty of possession of more than five grams of cannabis. The State’s proof showed that the cannabis weighed 7.05 grams which included a piece of a stem. Purifoy argues that the evidence adduced is insufficient to support the charge that Purifoy had more than five grams of cannabis.
The statutory definition of cannabis excludes certain parts of the plant, such as mature stalks. Section 893.02(2), Florida Statutes (1975). Purifoy contends that he was entitled to a judgment of acquittal or a new trial because the 7.05 grams of cannabis contained pieces of stems which were excluded by Section 893.02(2). The statute does not define mature stalks. Purifoy urges that stem is synonymous with stalk. The State’s expert witness considered a stem to be the little side branches of the plant and a stalk to be the major stalk of the plant. Although we are of the opinion that to give the words mature stalks their usual and ordinary meaning, we would agree with the expert’s definition, it is immaterial here. Section 893.10(1), Florida Statutes (1975), expressly provides that it is not necessary for the State to negate any exception at trial, the burden of proof being upon the person claiming the exception. In this case, Purifoy failed to carry his burden of showing that the 7.05 grams of cannabis, including a piece of a stem, did not weigh more than five grams after excluding the weight of the piece of stem.
The judgment and sentence are affirmed.
BOYER, C. J., and McCORD, J., concur specially.
BOYER, Chief Judge,
concurs specially.
I concur in affirmance.
McCORD, Judge,
concurring specially.
In my view, the Legislature in excluding “the mature stalks of the plant” intended that such exclusion apply only to the main trunk of the plant and not to the stems from which the leaves grow. While the term “stem” is often used for the word “stalk,” it is logical that the Legislature intended by its exclusion of “mature stalks” to exclude only the mature main stem or trunk of the plant. I, therefore, concur in the judgment.
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Purifoy v. State, 359 So. 2d 446 (Fla. 1978)…For these reasons the decision of the district court is quashed and this case is remanded for further proceedings not inconsistent with this opinion. OVERTON, C. J., SUNDBERG and ALDERMAN, JJ., concur. HATCHETT, J., dissents. . Purifoy v. State, 342 So. 2d 560 (Fla. 1st DCA 1977). . Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972); Samet v. State, 284 So. 2d 450 (Fla. 3d DCA 1973); Gunn v. State, 336 So. 2d 687 (Fla. 4th DCA 1976). . Fotianos v. State, 329 So. 2d 397 (Fla. 1st DCA 1976). . Art. V, § 3(…
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Wright v. State, 351 So. 2d 1127 (Fla. 1st DCA 1977)…r delivery without consideration of not more than five grams of cannabis, that person shall be guilty of a misdemeanor of the first degree. . Pope v. State, 268 So. 2d 173 (Fla.2nd DCA 1972). Compare this court’s recent opinion in Purifoy v. State, 342 So. 2d 560 (Fla.1st DCA 1977), in which it was held that Purifoy failed to meet the burden of proof placed upon him pursuant to Sec. 893.10(1), Fla.Stat., to show that the 7.05 grams of cannabis he was charged with possessing did not weigh more than five grams…