Is Possession of Marijuana a Misdemeanor or a Felony?

August 05, 2019

Although Florida has not legalized marijuana as some other states have chosen to do, the penalties for possession of marijuana or cannabis have certainly been watered down. Palm Bay, Florida is the latest jurisdiction to convert possession of a misdemeanor amount of marijuana to a possible civil citation. Miami Beach and other jurisdictions in South Florida have been doing this for the past couple of years. Although civil citations are available in some jurisdictions, possession of marijuana still remains a misdemeanor pursuant to Florida Statutes. What determines whether a person possesses a misdemeanor amount of marijuana? The answer is simple. Any amount greater than twenty grams is considered a felony, while anything less than twenty grams is a misdemeanor. Bear in mind, while some jurisdictions allow for civil citation, that does not necessarily mean you cannot be charged with a crime. The decision to make an arrest or issue a civil citation is up to the sole discretion of the police officer that caught you with the pot. In short, your fate is left to the charging police officer. His or her personality and the conduct of the person being investigated will set the tone for the disposition of the case. The Miami criminal lawyers at DMT suggest that cooperation and politeness will go a long way to receiving a citation rather than being arrested.


There is a silver lining if you are arrested for simple possession of cannabis. Depending on a person's attitude, the arresting officer has the option to take the offender to jail or issue a "PTA" or a promise to appear. A PTA means you will not go to jail but will have to appear in court to deal with the case. In Miami-Dade County, first time offenders used to be offered "PTD" of pre-trial diversion. Simply put, if a person was charged with simple possession they could enter and complete the program, resulting in the charge being dismissed. Typically, a person would have to pay a small enrollment fee, successfully complete an online drug class, and stay out of trouble for six months. Successful completion of the those conditions would lead to a dismissal of the charge. Recently, the policy at the Miami-Dade State Attorney's Office has gotten even better for defendants. If a person is criminally charged with simple possession and has no priors, the case would be reset for sixty days. If the defendant has no contacts with the criminal justice system during that time, the case will be dismissed with no need to enter the PTD program. Marijuana is still illegal in the State of Florida. The attorneys at DMT recommend to all avid users to obtain a medical marijuana prescription/card. Possession of a card will prevent civil citations and criminal charges.


Felony arrests for possession of marijuana do not allow for civil citations or being PTA'd by the officer. Possession of marijuana in excess of twenty grams is a felony and is punishable by up to five years in prison. Jail time for such charge is highly unlikely, but no one needs a felony record for possession. There are several ways to avoid a conviction. If a person has no priors, the State can offer a Pre-trial intervention (PTI) program. This is the felony version of PTD. The only hitch is that a person can only avail themselves of the program once. However, other alternatives sometimes exist. Some judges will allow you to appear in court once a month for a specific amount of time. In court, they will ask for a urine sample. If an individual is clean for a length of time determined by the judge, the State will dismiss the charge. Some courts allow defendants to complete a short outpatient program in exchange for a dismissal. In sum, there are many options available to achieve a dismissal of the case.

Individuals get into trouble when they are caught with a backpack full of small baggies, scales, and grinders, The police will often arrest someone for possession with intent to sell marijuana. The cases are looked at differently by the prosecutors and judges. Facts similar to these will lead them to assume that a person is a dealer rather than a user. Qualified and experienced defense lawyers will look at the facts alleged in the arrest affidavit and try to convince the prosecutor that these facts as mentioned above do not meet the requirements of such a charge. The attorneys at DMT have on dozens of occasions convinced prosecutors that possession of numerous baggies, scales, and grinders does not amount to a possession with intent charge. The case law in Florida requires more than those facts, such as the cop seeing a hand to hand transaction or being caught in a high crime or drug area. Experienced defense lawyers are experienced in convincing prosecutors to reduce the charge to possession rather than possession with intent. Once the intent classification is removed, all of the options mentioned above will be available to the client.

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