Magic Mushrooms

Now that summer is upon us in Central Florida, individuals in the rural sections of our area including Geneva, Chuluota, and Osteen might find themselves charged with possession of psycadellic mushrooms or possession of mushrooms that contain psilocybin a hallucinogen. Although it is not a crime to possess a mushroom if there is any amount of psilocybin in the mushroom cap the State will charge you with a Third Degree Felony. Usually in our area these often called “magic mushrooms” are found in (believe it or not) cow manure after a summer rain and individuals will either eat the mushroom caps whole or brew a “mushroom tea”. The State must always prove that the mushroom that is obtained contains psilocybin, a task that may be more difficult than you think as the mushroom is usually sent to FDLE laboratories and the lab may find no trace; or the mushroom that is obtained may have never possessed even a trace amount psilocybin. Many times the State will try to charge defendants with criminal trespass on lands when they attempt to procure the mushrooms or destruction of plant life. Please take a look at the motion to dismiss below that was successful in disposing a possession of mushroom case in Seminole County, Florida.

IN THE COUNTY COURT OF THE
18TH JUDICIAL CIRCUIT IN AND
FOR SEMINOLE COUNTY FLORIDA
CASE NUMBER: 2013-MM-00XXXX-A

STATE OF FLORIDA
Plaintiff,
vs.
XXXXXXXXXX
Defendant.
_________________________/

SWORN MOTION TO DISMISS

COMES NOW the Defendant, XXXXXXXXX, by and through the undersigned attorney, and moves this Honorable Court, pursuant to Rule 3.190(c )(4) to dismiss the Information filed in this case. The Information charges the Defendant with the offense of Destruction of Park Property or Resources (Plant Life) in violation of Rule 62D-2.013(4), Fla. Admin. Code. The grounds for dismissing this Information are that there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the Defendant. The undisputed facts are as follows: 

1. On June 19, 2013, at approximately 2:40 PM, the Defendant, along with two other individuals, was allegedly seen by Officer XXXXXX, a Florida Fish and Wildlife Conservation Commission Officer, picking mushrooms in a pasture area containing cows of the Killbee Unit of the Little Big Econ Wildlife Management Area.

2. A mushroom is neither a plant nor an animal. It is a member of a large group of eukaryotic organisms that includes microorganisms such as yeasts and molds. These organisms are classified as a kingdom, “Fungi”, which is separate from plants, animals, protists and bacteria.

These facts do not establish a prima facie case of Destruction of Park Property or Resources (Plant Life) as a matter of law: since a mushroom is not a plant, Rule 62D-2.013(4) which clearly addresses plants is not applicable to the picking of Mushrooms, or more correctly fungi.

WHEREFORE based upon the foregoing the Defendant prays this Honorable Court will grant his motion and enter an order dismissing the charge with prejudice as there are no material disputed facts and the undisputed facts fail to create a prima facie case of guilt against the Defendant.