25.13 TRAFFICKING IN METHAQUALONE 893.135(1)(e), Fla. Stat. Certain drugs and chemical substances are by law known as "controlled substances." Methaqualone or any mixture containing methaqualone is a controlled substance. To prove the crime of Trafficking in Methaqualone, the State must prove the following four elements beyond a reasonable doubt: 1. [Name of defendant] knowingly [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] a certain substance. 2. The substance was ethaqualone ] [a mixture containing methaqualone]. 3. The quantity of the methaqualone involved was 200 grams or more. 4. [Name of defendant] knew that the substance was [methaqualone] [a NOTE TO JUDGE: If applicable under the facts of the case and pursuant to F.S. 893.135(2), the following bracketedshould be given instead of element 4 language above. For example, if it is alleged that the defendant intended to sell heroin but actually sold methaqualone, the alternate element 4 would be given. an ufacture] [deliver] erated controlled substance in F.S. h [bring into Florida] [possess] [an enum [brought into Florida] [possessed] methaqualone or a mixture containing [4. [Name of defendant] intended to [sel "Sell" means to transfer or deliver somthing to another person in exchange for emoney or something of value or a promise of money or something of value. "Manufacture" means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. >>>> 2 To "possess" means to have personal charge of or exercise the right of ownership, management or control over the thing possessed. Possession may be actual or constructive. Actual possession means (a) the thing is in the hand of or on the person, or (b) the thing is in a container in the hand of or on the person, or (c) the thing is so close as to be within ready reach and is under the control of the person. NOTE TO JUDGE: Give any of the next three paragraphs if applicable. Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control. Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it. If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the persons (1) control over the thing, (2) knowledge that the thing was within the persons presence, and (3) knowledge of the illicit nature of the thing. Possession may be joint, that is two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed. The punishment provided by law for the crime of Trafficking in Methaqualone is greater depending on the amount of methaqualone involved. Therefore, if you find the defendant guilty of Trafficking in Methaqualone, you must determine by your verdict whether: a. [The quantity of the substance involved was in excess of 200 grams but less than 5 kilograms.] b. [The quantity of the substance involved was 5 kilograms or more but less than 25 kilograms.] >>>> 3 c. [The quantity of the substance involved was 25 kilograms or more but less than 50 kilograms.] NOTE TO JUDGE: In 2002, the Legislature passed legislation declaring that knowledge of the illicit nature of a controlled substance was not an element under the statute but rather was an affirmative defense. This legislation was in reaction to the Florida Supreme Courts holdings in Chicone v. State, 684 So. 2d 736 (Fla. 1996) and Scott v. State, 808 So. 2d 166 (Fla. 2002), which held that a knowledge element be added to possession instructions. The jury instruction committee has not yet issued a standard jury instruction reflecting the change created by the Legislature. The instant instruction has been changed, however, to eliminate knowledge of the illicit nature of the controlled substance as an element. However, if the defendant committed the crime prior to May 13, 2002, (the effective date of the legislation), the knowledge element must be included as a fourth element. See Thomas v. State, 844 So. 2d 723 (Fla. 5th DCA 2003).