WILLIAM N. AYLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Aylin appeals his conviction for conspiracy to possess cannabis, arguing the conspiracy should be classified as a first-degree misdemeanor rather than a third-degree felony. The Florida appellate court agrees, holding that the conspiracy charged lacked allegations of intent to sell or distribute, making it a conspiracy to commit simple possession (a third-degree felony), which itself constitutes only a first-degree misdemeanor conspiracy, and therefore reverses because Aylin was not tried within the required 90-day speedy trial period.
The conspiracy charged constitutes a first-degree misdemeanor, not a third-degree felony, because the information lacked allegations that the conspiracy involved intent to sell, manufacture, or deliver the cannabis. Under Florida law, conspiracy to commit a third-degree felony is a first-degree misdemeanor, triggering a 90-day speedy trial requirement. Because the State failed to bring Aylin to trial within 90 days, his motion for discharge should have been granted.
[1] A conspiracy to commit simple possession of cannabis, even in excess of 100 pounds, is a first-degree misdemeanor, not a felony.
[2] The offense of possessing in excess of 100 pounds of cannabis is a second-degree felony only when coupled with allegations of intent to sell, manufacture, or deliver.
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 legislature deliberately subsumed the new 100-pound quantity element under the older prohibition of selling, manufacturing, delivering, or possessing with intent to sell, manufacture, or deliver.”
Establishes that the 100-pound threshold for enhanced penalties applies only when there is intent to sell, manufacture, or deliver, not to simple possession.
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Join FLexlaw to unlock all legal intelligenceAylin was charged with conspiracy to possess in excess of 100 pounds of cannabis. The information alleged that Aylin and others conspired to possess c…
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SMITH, Acting Chief Judge.
Having properly reserved the right to do so, Aylin appeals from a circuit court judgment convicting him, after a plea of nolo contendere, on a charge that he and others
did agree, conspire, combine and confederate each one with the others to commit the felony of possession of in excess of 100 pounds of CANNABIS and . WILLIAM NORMAN AYLIN did, in the County of Leon, State of Florida, do an act in furtherance of said conspiracy in that on October 14, 1976, WILLIAM NORMAN AYLIN did depart Tallahassee Municipal Airport enroute to possess in excess of 100 pounds of CANNABIS and to proceed to Stella Maris, Long Island, Bahamas .
We need address only one of the several issues presented. We find, as appellant contends, that the conspiracy charged is not a felony of the third degree, as found by the trial court. Rather, it is a misdemeanor of the first degree. The speedy trial time proscribed by Rule 3.191, Fla.R. Cr.P., was therefore 90 days, not 180 days. Appellant was not brought to trial within 90 days and his motion for discharge should have been granted.
Section 893.13(l)(a), Florida Statutes (1977), provides in part:
(1)(a) Except as authorized by this chapter and chapter 500, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. Any person who violates this provision with respect to:
2. A controlled substance named or described in s. 893.03(1)(c), (2)(c), (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084; except that the sale, delivery, or possession of in excess of 100 pounds of cannabis as controlled in s. 893.03(l)(c) shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Section 893.13(l)(e) provides:
(e) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained . . Any person who violates this provision is guilty of a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.
The question of statutory construction is whether, by Section 893.13(l)(a)2, the legislature made simple possession of more than 100 pounds of cannabis a second degree felony or, instead, made possession of that quantity punishable as a second degree felony only when it was sold, manufactured, delivered, or possessed with intent to sell, manufacture, or deliver. It is apparent both from Section 893.13(l)(a) and from the text of the session law, Chapter 76-200, Laws of Florida, that the legislature deliberately subsumed the new 100-pound quantity element under the older prohibition of selling, manufacturing, delivering, or possessing with intent to sell, manufacture, or deliver. It follows that the present information, lacking allegations of a conspiratorial purpose to possess cannabis with intent to sell, manufacture, or deliver it, does not charge a conspiracy to commit the second degree felony proscribed by Section 893.-13(l)(a)2. Rather, the offense-object of the alleged conspiracy was the third degree felony of simple possession of cannabis, proscribed by Section 893.13(l)(e).
It is a misdemeanor of the first degree to conspire to commit an offense classified as a felony of the third degree. Section 777.04(4)(d), Florida Statutes (1977). Because the information charged that Aylin was guilty of such a conspiracy, the State was obliged to bring Aylin to trial within 90 days, which it failed to do. Aylin’s motion for discharge should have been and now must be granted. The judgment is REVERSED and Aylin is DISCHARGED.
MELVIN and BOOTH, JJ., concur.
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State v. Brady, 406 So. 2d 1093 (Fla. 1981)…r review a decision of the District Court of Appeal, Fourth District (State v. Brady, 379 So. 2d 1294 (Fla. 4th DCA 1980)), which expressly and directly conflicts with a prior decision of the District Court of Appeal, First District (Aylin v. State, 362 So. 2d 435 (Fla. 1st DCA (1978)). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. Respondents, Frank J. Brady, Philip M. Eckard, and Ronald B. Elliot, were arrested and charged with delivery of marijuana in excess of 100 pounds, possession of marijuana in…
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State v. Brady, 379 So. 2d 1294 (Fla. 4th DCA 1980)…led to predicate any result, whatever it would have been, on reasonable rights of privacy rather than the right to be secure in property. On the second point considered, the principal case again is from the First District, this time Aylin v. State, 362 So. 2d 435 (Fla. 1st DCA 1978). Aylin did indeed hold as a matter of statutory construction that the Legislature had “subsumed” the new 100 pound provision of Section 893.-13(l)(a)(2), Florida Statutes (1977) into the older prohibition under Section 893.13(l)(…1 / 2
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State v. Corlew, 382 So. 2d 787 (Fla. 2d DCA 1980)…53 So. 2d 861 (Fla.1971). On September 1, 1978, the First District Court of Appeal held that possession of more than one hundred pounds of cannabis is a second degree felony only where the cannabis is possessed with intent to sell.1 Aylin v. State, 362 So. 2d 435 (Fla. 1st DCA 1978). Thereafter, on November 9, the state amended its information to allege that Corlew possessed the contraband “with intent to deliver or sell.” On March 2, 1979, at the state’s request the court set Corlew’s trial for April 16. O…
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