893 Unconstitutional Florida | Guest Author Rosemary Cakmis

893 Unconstitutional
Attorney Lawyer
Drug Defense Lawyer just received an update from an extremely well-qualified Federal Criminal Defense Attorney, Rosemary Cakmis.

Questions? Call 813-222-2220.


We are happy to present her as a guest author with her team's cogent observations in their entirety:

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. I've heard from some of you that you have raised this issue before and are excited about raising it again. We are working on ideas for its application in federal cases -- which regularly apply enhancements based on prior Florida drug convictions. We appreciate your ideas in this regard. Please keep them coming.

Because the opinion is a bit long -- 43 pages -- some have commented that they haven't had a chance to read it. Please take the opportunity to read it this weekend because it is chock-full of great tidbits of wisdom. In the meantime, Tracy Dacruz, one of our appellate attorneys, prepared the digest of the opinion below to give you a flavor of the opinion until you can read the whole thing.

Mackle Vincent Shelton v. Secretary, Department of Corrections, et, al.
6:07-cv-00839-MSS-KRS (MDFL) Doc. 38.

Case Summary

On July 27, 2011, Federal District Judge Mary S. Scriven granted petitioner Mackle Vincent Shelton’s petition for writ of certiorari, finding that § 893.13, Florida Statutes, is facially unconstitutional. Petitioner Shelton, who was convicted of delivery of cocaine, filed a petition for federal habeas relief based upon several grounds including that § 893.13 was facially unconstitutional because it entirely eliminates mens rea as an element of a drug offense and creates a strict liability offense under which he was sentenced to eighteen years in prison. In May 2002, the Florida Legislature expressly eliminated mens rea as an element of a controlled substance offense, stating:

(1) The Legislature finds that the cases of Scott v. State, [808 So.2d 166] (Fla. 2002) and Chicone v. State, 684 So.2d 736 (Fla. 1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.

(2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.

(3) In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.

Fla. Stat. § 893.101.

Notably, Florida is the only state that expressly and purposefully removed mens rea as an element of a controlled substance offense. As Judge Scriven illustrated, due to the lack of mens rea as an element, a Fed Ex delivery man could be convicted under § 893.13 for unknowingly delivering a package containing a controlled substance. Citing Staples v. United States, 511 U.S. 600, 619, 620 (1994), the district court noted that a strict liability offense has only been held constitutional if (1) the penalty imposed is slight;(2) a conviction does not result in a substantial stigma, and (3) the statute regulates inherently dangerous or deleterious conduct.

Moreover, the district court pointed out, the Supreme Court read Staples and its antecedents as instructing that the presumption of a scienter requirement should apply to each of the statutory elements that criminalizes otherwise innocent conduct. In considering the Staples factors, the district court determined that § 893.13 violates due process.

First, the district court found that § 893.13 violates due process because the penalties are too severe. 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 pointed out that a conviction for delivery of a controlled substance, as defined in Schedule I, is a second-degree felony punishable by up to 15 years, and for a habitual violent felony offender like Petitioner Shelton, the offense includes a 10-year minimum mandatory sentence, with a 30-year maximum sentence.

Second, the court found that § 893.13 violates due process because it creates a substantial social stigma. Coupling the Supreme Court’s own admission that “a felony is as a bad a word as you can give a man,” with the fact that a 15 to 30-year sentence and the inability of felons to vote, sit on a jury, serve in public office, possess a firearm, obtain professional licenses, or federal student loan assistance, a felony conviction under § 893.13 gravely besmirches an individual’s reputation.

Furthermore, 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. Under the statute, that conduct is criminal if it turns out that the substance in the container is a controlled substance without regard to the deliverer’s knowledge. As such, the court ruled that § 893.13 cannot survive constitutional scrutiny when considered in relation to the conduct it regulates – delivery of any substance.

In conclusion, the court stated that § 893.13 “is not a ‘drug dealer beware’ statute but a ‘citizen beware statute,’” and asserted:

Consider the student whose book bag a classmate hastily stashes his drugs to avoid imminent detection. 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.

Questions? Call 813-222-2220

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