Monday, August 27, 2012


Are Florida Drug laws unconstitutional? Your favorite Clearwater Criminal Defense Attorney sees Florida Drug laws as flawed in they do not require knowledge of drugs as an element of the offense, an element of the offense being what the State of Florida must prove in order to secure a conviction. 
First, about a year ago Federal District Judge Scriven lofted the ball onto the court for an ace finding Florida Drug laws were unconstitutional. Then the Florida Supreme Court tied the game finding that the Florida Drug laws are constitutional with some brilliant and entertaining arguments by the attorneys

Florida drug laws are constitutional yet the law destroys more lives than the drugs just like  absinthe
Guy du Bois, Absinthe House New Orleans
Now the Federal Appeals Court has decided that yep, those folks on the Florida Supreme Court must be given deference in their interpretation of Florida law; therefore, the controversial Florida Drug Statutes are constitutional and you, my reader with your warm bong, your cold beer, and your frozen pizza, what will you do as this game is finished?
Take heart. As lawyer Rosemary Cakmis reminds us in this email, the decision isn't as encompassing nor definitive as it may seem:
Remember that Shelton came to federal court by way of a habeas petition under 28 USC 2254. So the attached decision, reversing Judge Scrivens' famous decision ruling that the Florida drug statute is unconstitutional, is not as devastating as it may seem at first blush. The critical part of the 11th Circuit decision is on the last page:
"To be clear, this Court expresses no view on the underlying constitutional question, as we limit our analysis to AEDPA’s narrow inquiry." Over the years, section 2254 has been (and continues to be) severely limited. And alleged errors in state court are not reviewed by federal courts under the same standard as federal courts use to review errors in federal proceedings...As relevant here, the federal court can only grant 2254 relief on a claim that the state court adjudicated on the merits if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 USC s. 2254(d).
Herein lies the problem. Judge Scriven found that a per curiam affirmence is not an adjudication on the merits under Florida law, and so the Florida court was not entitled to deference. The 11th Circuit disagreed, stating that it was compelled to presume the state court in Shelton's case rendered an "adjudication on the merits," which is entitled to deference in a 2254 proceeding.

In the end, all that the 11th Circuit decided today in Shelton was that the issue was "novel," there was no Supreme Court precedent directly on point, and therefore the state court's decision was not unreasonable. 
Clearwater Criminal Defense Lawyers note that the original issue came to Judge Scriven as a habeas corpus petition, which is a petition from a Florida inmate asking a Federal Judge to release him from prison because he shouldn't be there. Yet with all this litigation somehow lost is the grim reality of this man named Shelton, his name gracing this case bandied about like a tennis ball slammed in bounds and out, who'll remain a prisoner serving a long Florida sentence for his drug crime.