“Wake and Bake”: When 18 Baggies of Weed is Just Breakfast, Not a Felony

By: John Guidry

Everyone knows someone who simply loves to smoke weed. They begin their day by smoking (“wake and bake,” as it’s called) and end it that way as well. Assume that this person gets arrested in Orlando with a large supply. The police immediately charge them with Possession with Intent to Sell or Deliver (a Felony).

The Question: Is it a valid defense to say, “I’m not a dealer, I just smoke a lot”? The Answer: Yes.

Did the police charge you with “Intent to Sell” just because of how your weed was packaged?

Packaging is not proof. Call John today at (407) 423-1117.

The Case: Alleyne v. State (18 Baggies = Misdemeanor?)

In the case of Alleyne v. State, 42 So. 3d 948 (Fla. 4th DCA 2010), the defendant was caught with:

• $56 in cash.
• 18 individual Ziploc baggies of marijuana.
• Total Weight: Less than 20 grams.

The Charge: This should be a Misdemeanor Possession of Cannabis (<20g). However, it became a Third-Degree Felony because the arresting officer decided that “18 individual baggies” meant he was a drug dealer. This was the officer’s conclusion even though he never saw Alleyne sell anything.

The Defense: Alleyne took the stand and told the truth: He loves weed. He explained that 18 baggies would only last him about a day and a half.

The Ruling: Packaging Alone is Not Enough

The Court overturned Alleyne’s felony conviction and directed the lower court to enter a conviction for mere Misdemeanor Possession. The Court reasoned that the amount of marijuana and the packaging were not enough to prove the felony of “Intent to Sell.”

What Was Missing? To prove you are a dealer, the State generally needs more than just baggies:

1. Money: $56 is not “drug dealer money.” If he had $5,000 in small bills, the result might have been different.
2. Transactions: The police saw no hand-to-hand sales.
3. Paraphernalia: The lack of a scale often helps the defense (though dealers don’t always carry scales).

So for today, 18 baggies of weed weighing less than 20 grams is still a misdemeanor—if you fight it.

John’s 2026 Update: The “Medical” & “Digital” Defense

Note: Since 2010, two major things have changed: Medical Marijuana and Smartphones.

1. The Medical Marijuana Card Shield In 2026, many of my clients have Medical Marijuana Cards.

• The Trap: Even with a card, you are supposed to keep your cannabis in the original dispensary packaging. If you move it to “18 Ziploc baggies,” you are technically violating the medical rules.
• The Defense: However, we argue that because you are a legal patient, your possession is presumptively for medical use, not sales. Breaking the packaging rule might be a civil issue or a minor violation, but it is not a felony “Intent to Sell.”

2. The CashApp/Venmo Evidence In Alleyne, the court looked at the $56 in his pocket. Today, police look at your phone.

• The Danger: If you have 18 baggies and your Venmo history shows 10 different people sending you $20 with “🍃” or “💨” emojis, the Alleyne defense fails. That digital paper trail proves you are dealing, even if you have zero cash in your pocket.

3. The Hemp vs. Marijuana Confusion Since the 2018 Farm Bill, legal Hemp looks and smells exactly like illegal Marijuana.

• The Strategy: If you are arrested with baggies of green leafy substance, we demand a Quantitative Lab Test. The standard field test cannot tell the difference between legal Hemp (CBD) and illegal Cannabis (THC). If the State can’t prove the THC percentage, they can’t prove it’s illegal drugs at all.

Don’t Let Them Upgrade Your Charges

If you are a heavy smoker, you shouldn’t be treated like a drug kingpin just because you buy in bulk or separate your stash.

Call me at (407) 423-1117. Let’s get that felony dropped.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.