As Amendment 2 vote nears, marijuana already less illegal than some legal drugs

Among the decisions voters will be allowed to make in Tuesday’s general election is whether marijuana should be legalized for medical purposes.

Marijuana is a substance demonized by some, considered a way of life for others and generally decriminalized in small amounts.

The Florida amendment (No. 2) is being championed by some who suffer from conditions that can be helped by marijuana, while others, most notably law enforcement, are against it for various reasons.

But legal or not, it’s no secret that the drug is readily available in almost every community.

And although marijuana is illegal to possess and sell, a conviction for moving it will most likely be much less severe than a conviction for the sale of certain legal prescription drugs.

“Clearly over time, marijuana has become less and less of a concern to the court system, but the judges still have to do something because it’s the law,” said local attorney Patrick Canan.

Doing the (limited) time

A perfect case to illustrate the lack of bite in Florida’s marijuana laws is that of Roberto Perdomo and co-defendant Richard Anthony Robinson in 2013 in St. Johns County.

The two men were under a 120-day wire tap investigation, and St. Johns County Sheriff’s Det. Shawn Ferris testified that they sold marijuana by the pound.

“He sold marijuana every day we listened to him,” Ferris said in court.

Investigators found them with a reported 2.5 pounds of marijuana.

They both pleaded no contest to possession of cannabis with intent to sell, and Robinson also pleaded to manufacture of cannabis.

Those are third-degree felony charges, and because the men had no criminal history, they were each sentenced to 300 days in the county jail and probation.

Ferris described Robinson at the sentencing hearing as “nothing but a drug dealer,” and he served less than a year behind bars.

The law is the law

Some people might see that case as a judge — in this case Circuit Court Judge Michael Traynor — as being too lenient.

But Traynor has no history of being “soft” on drug crimes or any other crimes. He was simply following the law of the state.

Spencer Hathaway, spokesman for State Attorney R.J. Larizza of the 7th Judicial Circuit, explained that the drug laws and penalties are very structured in Florida. Judges have limited discretion in their sentencing options.

All felony convictions come with a score sheet prepared by the state. The “score” leads directly to the sentencing recommendations and/or requirements.

Hathaway said that possession of cannabis with intent to distribute is considered a level 3, third-degree felony. A conviction, which includes a no contest plea, on that charge alone would score 16 points.

To receive a prison sentence (those incarcerated for more than a year go to state prison), one would have to score 22 points, Hathaway said. A judge can impose a prison term on an offender with less than 22 points only if he issues a written finding that the offender is a danger.

To get serious time as a marijuana pusher, one has to be a repeat offender or be charged with trafficking.

But to be charged with trafficking marijuana, a suspect must be found with 25 pounds or more of the substance.

“(The law) is less concerned with user compared to pusher,” Canan said. “It’s always contingent on how much. The real criminal enterprise is what the court cares about the most.”

Dividing the drugs

While the penalties for selling several pounds of marijuana might not be very stiff, that’s not true of other drugs.

For instance, the charge of possession with intent to distribute of a Schedule II substance, such as prescription painkillers Hydrocodone or Oxycodone, is a second-degree felony. One count would score 28 points, which is not enough to trigger automatic prison time but it could lead there.

However, because the state law says a Schedule II substance has “a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States, and abuse of the substance may lead to severe psychological or physical dependence,” the penalties can increase quickly.

Selling drugs while in possession of a firearm or within 1,000 feet of a school increase the severity of the punishment.

Also escalating the seriousness would be a trafficking charge.

Hathaway said sale of Schedule II substance becomes trafficking with 14 grams (about 46 pills) with Hydrocodone or 7 grams of Oxycodone (about 70 pills). Trafficking carries a minimum mandatory sentence of three years in prison, and the sentence could certainly be increased.

Canan said he understands why the Legislature has taken a hard line with narcotics, even though they are prescribed legally. Because his practice sees a lot of car wrecks and accident lawsuits, Canan said he’s met a lot of people who become addicted to painkillers after suffering from some kind of injury.

“I’ve had so many cases where they’ve went in innocently with a bad back and come back six months later hooked on Oxycodone,” he said.

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As Amendment 2 vote nears, marijuana already less illegal than some legal drugs