Legal Question in Criminal Law in Florida

My wife is charged with "possession of cannabis 20 grams or less" , however the substance they seized is actually tobacco!, for some reason the her lawyer wants to plea bargain with the prosecutor to have the charge reduced to possession of paraphernalia, which he believes will get her 6 months probation.

We can't understand this, can anyone anyone explain why the lawyer would want to do this?

I'm no legal expert, but I would have thought this would be the perfect case for a defense lawyer to take to trial, knowing that the prosecution's key price of evidence is worthless!!

Asked on 12/10/10, 7:27 am

2 Answers from Attorneys

Karen Kilpatrick

Your wife is the client and the ultimate decision whether to plea or not rests with her. Have you asked your attorney whether the prosecution has tested the substance? They would need to prove it is actually what they say it is (and not something else, like you claim). The results of this test would be available to you under the discovery rules, if you elect to participate in discovery (which it sounds like you should). Also be aware that any plea should be "adjudication withheld" and not adjudicated guilty. With an adjudication withheld your wife would be able to have her record sealed, assuming she meets all other eligibility requirements. If charges were dismissed, she may be eligible to have her record expunged. Good luck.

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Answered on 12/15/10, 8:10 am

Leland Garvin Garvin Law Firm

In Broward cannabis is not tested until the day of trial so the test results will not be available to you until that day.

As far as the paraphernalia charge, the only way that they could prove that this was drug paraphernalia is if there was actual drug residue in the pipe if it were to be tested. If in fact the pipe was never used for smoking anything illegal then there shouldn't be any residue on the pipe and thus should be dismissed. Also, the fact there is drug residue on the pipe does not mean that it would be an automatic conviction but does help the case.

As for the 6 months probation, I think that is a horrible offer and that she could do much better (unless she has a ton of prior charges); I wouldn't feel comfortable resolving this case for anything greater that a withhold and court costs. Otherwise I would be looking at going to trial; depending on the judge this could be something that you could comfortably go forward with a bench trial.

I was previously a prosecutor here in Broward and would be happy to talk further with you/her in the event that you aren't able to work things out with your current lawyer.

best of luck,


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Answered on 12/15/10, 8:49 am

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