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Tampa Family Lawyer > Blog > Drug Crime > How “Lesser Included” Offenses Can Affect A Florida Drug Case

How “Lesser Included” Offenses Can Affect A Florida Drug Case


In many criminal cases, a defendant may be convicted of a “lesser included” offense. For example, if a person is charged with possession of drugs with intent to distribute, a lesser included offense would be simple possession. If the jury is instructed on the lesser offense, it could elect to convict the defendant of simple possession but not possession with intent to distribute.

Federal Appeals Court Rejects “Simple Possession” Due to Quantity of Meth Involved

Although a defendant may always request a jury instruction on a lesser offense, the judge is not obligated to issue it. Normally, instruction on a lesser offense is only justified when there is a disputed issue of fact regarding an element for conviction on the “greater” offense but not the lesser one.

A recent unpublished decision from the U.S. 11th Circuit Court of Appeals, United States v. Moore, helps to illustrate what we are talking about. In this case, police officers decided to arrest the defendant after he sold one gram of methamphetamine to an undercover informant. Officers then searched the defendant’s house and found an additional 37.8 grams of methamphetamine together with various drug paraphernalia.

Federal prosecutors subsequently charged the defendant with possession with intent to distribute less than five grams of methamphetamine. At trial, the defendant requested the judge instruct the jury that it could convict him on the lesser included offense of simple drug possession. The judge refused the instruction. The jury convicted the defendant of possession with intent to distribute, and the judge sentenced him to 15 years in prison.

On appeal, the 11th Circuit affirmed the defendant’s conviction and sentence. The appellate court noted that in drug cases, a “substantial quantity of drugs may preclude a rational inference of personal consumption.” That is to say, simple possession implies the defendant only possessed the drugs in question for their personal use as opposed to sale. But at a certain point, the amount of drugs involved render such a claim illogical.

Here, the 11th Circuit said the evidence “did not justify an instruction,” due not just to the quantity of methamphetamine seized, but also the evidence related to the sale of drugs to the confidential informant. In short, all of the evidence supported the inference that the defendant did not possess 37.8 grams of methamphetamine for personal use. And in order to justify a lesser included offense instruction, the burden was on him to show how the evidence would support such a charge.

Speak with a Florida Criminal Defense Attorney Today

It is not unusual for prosecutors to “overcharge” a defendant, particularly in drug cases, in the hopes of securing a plea on a lesser charge. This is why it is important to work with a qualified Tampa drug crimes lawyer if you are accused of possession or distribution of any controlled substance. Contact the Faulkner Law Group, PLLC, to schedule a free consultation with a member of our criminal defense team.



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