Florida Senate - 2008 (Reformatted) SB 390
By Senator Oelrich
14-00417-08 2008390__
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A bill to be entitled
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An act relating to controlled substances; amending s.
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893.1351, F.S.; prohibiting a person from owning or
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actually or constructively possessing a place, structure,
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trailer, or other described place with knowledge that the
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place will be used to manufacture, sell, or traffic in a
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controlled substance; providing that possession of a
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specified number or more of cannabis plants constitutes
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prima facie evidence of intent to sell or distribute;
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providing criminal penalties; creating s. 893.1352, F.S.;
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defining terms; providing that a person with actual or
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constructive possession of a place, structure, trailer, or
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conveyance being used to manufacture a controlled
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substance for sale and distribution commits a felony of
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the first degree if a minor is present or resides in the
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place, structure, trailer, or conveyance; providing that a
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person who allows an infant or toddler to be in close
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proximity to a controlled substance commits a felony of
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the first degree; providing criminal penalties; ranking
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such offenses in the offense severity ranking chart;
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amending s. 893.10, F.S.; providing that equipment used in
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the cultivation or manufacture of controlled substances
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may be photographed or video recorded and the photograph
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or video recording used as evidence for later use at
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trial; providing for the destruction of the equipment;
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providing an effective date.
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Be It Enacted by the Legislature of the State of Florida:
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Section 1. Section 893.1351, Florida Statutes, is amended
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to read:
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893.1351 Own, lease, or rent for the purpose of trafficking
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in a controlled substance.--
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(1) A person may not own, lease, or rent any place,
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structure, or part thereof, trailer, or other conveyance, with
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the knowledge that the such place, structure, trailer, or
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conveyance will be used for the purpose of trafficking in a
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controlled substance, as provided in s. 893.135; for, or the sale
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of a controlled substance, as provided in s. 893.13; or for the
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manufacture of a controlled substance intended for sale or
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distribution to another.
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(2) A person may not knowingly be in actual or constructive
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possession of any place, structure, or part thereof, trailer, or
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other conveyance with the knowledge that the place, structure, or
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part thereof, trailer, or conveyance will be used for the purpose
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of trafficking in a controlled substance, as provided in s.
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893.135; for the sale of a controlled substance, as provided in
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s. 893.13; or for the manufacture of a controlled substance
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intended for sale or distribution to another.
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(3) Proof of the possession of 25 or more cannabis plants
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constitutes prima facie evidence that the cannabis is intended
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for sale or distribution.
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(4)(2) A person who violates any provision of this section
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commits subsection (1) is guilty of a felony of the third degree,
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Section 2. Section 893.1352, Florida Statutes, is created
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to read:
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893.1352 Unlawful possession of a controlled substance in
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the presence of a minor.--
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(1) As used in this section, the term:
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(a) "Close proximity" means the item is so close to the
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infant or toddler as to be within his or her reach without regard
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to whether the infant or toddler is likely to attempt to reach
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for the item.
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(b) "Infant or toddler" means any child from birth until
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the child's third birthday.
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(2) A person who is found to be in actual or constructive
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possession of a place, structure, trailer, or conveyance with the
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knowledge that the place, structure, trailer, or conveyance is
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being used to manufacture a controlled substance intended for
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sale or distribution to another and who knew or should have known
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that a minor is present or resides in the place, structure,
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trailer, or conveyance commits a felony of the first degree,
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(3) A person may not possess any amount of a controlled
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substance in close proximity to an infant or toddler. A person
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who violates this subsection commits a felony of the first
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(4) Notwithstanding any provision of chapter 921 or any
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other law, a conviction for a third-degree felony offense under
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s. 893.1351 or this section shall be ranked within the offense
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severity ranking chart at offense severity level 5, a conviction
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for any second-degree felony offense under s. 893.1351 or this
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section shall be ranked within the offense severity ranking chart
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at offense severity level 7, and a conviction for any first-
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degree felony offense under s. 893.1351 or this section shall be
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ranked within the offense severity ranking chart at offense
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severity level 8.
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Section 3. Section 893.10, Florida Statutes, is amended to
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read:
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893.10 Burden of proof; photograph or video recording of
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evidence.--
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(1) It is shall not be necessary for the state to negative
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any exemption or exception set forth in this chapter in any
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indictment, information, or other pleading or in any trial,
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hearing, or other proceeding under this chapter, and the burden
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of going forward with the evidence with respect to any such
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exemption or exception is shall be upon the person claiming its
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benefit.
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(2) In the case of a person charged under s. 893.14(1) with
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the possession of a controlled substance, the label required
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evidence and shall be prima facie evidence that such substance
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was obtained pursuant to a valid prescription form or dispensed
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by a practitioner while acting in the course of his or her
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professional practice.
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(3) In the prosecution of an offense involving the
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cultivation or manufacture of a controlled substance, a
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photograph or video recording of the manufacturing or cultivation
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equipment used in committing the offense, including, but not
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limited to, grow lights, growing trays, and chemical fertilizers,
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may be introduced as competent evidence of the existence and use
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of the equipment and is admissible in the prosecution of the
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offense to the same extent as if the property were introduced as
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evidence.
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(4) After a law enforcement agency documents the
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manufacturing and cultivation equipment by photography or video
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recording, the manufacturing and cultivation equipment may be
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destroyed on site and left in disrepair. The law enforcement
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agency destroying the equipment is immune from civil liability
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for the destruction of the equipment. The destruction of the
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equipment must be recorded by the supervising law enforcement
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officer in the manner described in s. 893.12(1)(a) and records
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must be maintained for 12 months.
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Section 4. This act shall take effect July 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.