Friday, September 02, 2011


Will Florida's 6th Circuit Judges in Pinellas, Tampa Bay, St. Petersburg, Clearwater and Largo Florida have the political courage to follow Judge Scriven's recent well reasoned federal decision? Miami Judges are finding Florida Drug laws unconstitutional, but the consequences for their decisions are less severe than in Tampa Bay.  So the question might be better urged as must the judges follow the law as given by the Federal Judge? The answer will come from how the Supreme Court of Florida interprets Florida Drug law.
The applicability of Judge Scriven's decision in Shelton -- that the Fla Drug statute is unconstitutional on its face -- cannot be overstated -- for state and federal cases. Some of you that you have raised this issue before and are glad for the opportunity of raising it again while working on ideas for its application in federal cases -- which regularly apply enhancements based on prior Florida drug convictions. 

Here are some interesting ideas about the federal ruling finding Florida's drug laws unconstitutional:
The court noted that no other strict liability statute carrying the penalties of the magnitude of § 893.13 has been upheld under federal law... the court ruled that § 893.13 regulates inherently innocent conduct because it does not require even a minimal showing that the Defendant knew he was delivering any illicit substance as an element of the offense charged. The court explained that there is along tradition of lawful delivery and transfer of containers that might contain substances – carrying luggage on and off public transportation, bags in and out of stores, carrying book bags and purses, transporting boxes via commercial transportation. 
The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty based upon the only two elements of the statue: delivery (actual, constructive, or attempted),and the elicit nature of substance. The victim would be faced with the Hobson’s choice of pleading guilty or going to trial where he is presumed guilty because he is in fact guilty of two elements. He must then prove his innocence for lack of knowledge against the permissive presumption the statute imposed that he does in fact have guilty knowledge. Such an outcome is not countenanced under applicable constitutional proscriptions.

What this boils down for Clearwater Federal Defense Lawyers is that Judge Scriven believes Florida law allows a Defendant to be prosecuted and found guilty of possession of drugs even if the Defendant has no knowledge of the drugs.  Knowledge is the linchpin of any criminal act. How can someone be guilty of possessing drugs unless there's proof the person knew of the drugs and without knowledge how could there be real possession?