Honorable Milton Hirsch Just Found Florida's Drug Statute Unconstitutional in Miami-Dade County

Trial Court Finds Florida Drug Statute Unconstitutional


The Honorable Milton Hirsch, Circuit Court Judge of the Eleventh Judicial Circuit in and for Miami-Dade County, in a well reasoned order just ruled that Florida’s drug statute is unconstitutional as it applies to charges of possession and delivery of a controlled substance.





The order also dismisses criminal charges against 40 defendants with pending felony drug charges in Miami-Dade County. This Honorable Court was forced to make the ruling because the Florida Legislature has still not amended Florida's drug statute to require a knowledge or intent element despite the ruling in Shelton

The opinion states, in part: 
The 39 defendants captioned above are similarly circumstanced in that all are charged with violation of Fla. Stat. § 893.13. In light of the recent decision in Shelton v. Department of Corrections, No. 6:07-cv-839-Orl-35-KRS, 2011 WL 3236040 (M.D. Fla. July 27, 2011), finding 893.13 unconstitutional, all defendants move for dismissal. I have consolidated these cases for purposes of these motions only.
Shelton has produced a category-five hurricane in the Florida criminal practice community. A storm-surge of pretrial motions (such as those at bar) must surely follow. It is, therefore, essential that I adjudicate the present motions promptly. This order has been written in great haste and under great time pressure. As Mark Twain is alleged to have said: "If I'd had more time, I could have written you a shorter letter."
Judge Milton Hirsch goes on to find that, "In the unique circumstances of this case, the opinion of the U.S. District Court in Shelton is binding."  The Court concludes: 
The immediate effect of the present order is the dismissal of charges against all movants – the overwhelming majority of whom may have known perfectly well that their acts of possession or delivery were contrary to law. Viewed in that light, these movants are unworthy, utterly unworthy, of this windfall exoneration. But as no less a constitutional scholar than Justice Felix Frankfurter observed, "It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end." Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).
Judge Milton Hirsch deserves an tremendous amount of praise for having the courage to issue this well written opinion.


Judge Milton Hirsch's biography - author of "The Shadow of Justice (Great Stories by Great Lawyers)" which was the first work of fiction published by American Bar Association, through the Criminal Justice Section. The Shadow of Justice was a finalist for the 2005 Benjamin Franklin Award in the category of Best New Voice (Fiction) and won first place in the 2004 Midwest Independent Publishers Association in the mystery/suspense category.


The Store-Surge of Pre-Trial Motions Continue


When will the Florida legislature act to undo the damage? Will they learn their lesson and amend the other criminal statutes that are effectively "strict liability" felony and misdemeanor crimes? Or will the Florida legislature stand alone (out of all fifty states) in being this tough on crime but dumb on due process?

Florida's New Gun Law Bans Local Restrictions

History of Florida's Gun Law Regulations

Since 1987, Florida law prevented local governments from passing restrictions that went beyond state law.  Despite these restrictions, local municipalities passed their patchwork of local ordinance and localized administrative rules that purported to prohibit the possession of firearms or ammunition in a way that was broader than the laws passed by the State of Florida for such regulation.

Often the local ordinances and administrative rules were arbitrary and selectively enforced. Local ordinances included various waiting period between purchase and delivery of handguns. Other local rules and ordinances prohibited possessing a firearm or ammunition in various parks, beaches and other locations.

Florida's New Gun Regulation Legislation

Florida new gun law started as Senate Bill 402 and then became House Bill 45. The bill is known as the "Joe Carlucci Uniform Firearms Act" which passed by a 30-8 margin. The creation and enforcement of local gun regulations and ordinances will end on October 1, 2011, when Florida's newly amendment firearm statute section 790.33 officially becomes law.

Intent of Florida's New Gun Laws

The intent of Florida's new gun law is to declare all local ordinances and regulations null and void which have been enacted by any jurisdictions other than the State of Florida and the federal government. The other stated intent is to prohibit the enactment of any future ordinances or regulations relating to firearms, ammunition, or components thereof unless specifically authorized by this section or general law.

The enforcement provisions of Florida's new gun law were designed to deter and prevent the violation of this new law, including the abuse of official authority that occurs when local enactments are knowingly passed in violation of state law. The new law also contains enforcement provisions to prevent any violation under color of local authority of rights.

Enforcement Provision Preventing Local Regulation of Gun Laws in Florida

Any local official who attempts to enforce an illegal local regulation or local ordinance faces a $5,000 fine that must be paid by the local official personally. In fact, no local funds can be used to defend the action except that a public defender or appointed counsel can be provided to an indigent person accused of this crime. Furthermore, the local official also faces being removed from office by the Governor of the State of Florida.

Preventing a Patchwork of Confusing Local Firearm Regulation 

Advocates for gun rights consider this bill an important piece of legislation that prevents the unfair prosecution of Florida citizens as they travel throughout the State. Those individuals are often unaware of small difference in the local laws regulating firearm possession that varied from city to city and county to county throughout the State of Florida.

Effect of the Florida's New Statutory Scheme for Gun and Ammunition Regulation

This new legislation for the regulation of Florida's laws concerning firearms and ammunition does the following:   
  • Reorganizes and clarifies the fact that the power to regulate firearms and ammunition belongs exclusively to the State of Florida; 
  • Prohibits local officials with municipal governments throughout the State of Florida from willfully and knowingly violating the Florida Legislature's ability to regulate the firearms and ammunition laws and rules. 
  • Eliminates provisions authorizing counties to adopt ordinance requiring waiting period between purchase and delivery of handgun. 
  • Provides for injunctive relief from enforcement of invalid local ordinances and other regulations and rules. 
  • Provides for a civil penalty for willfully and knowing violating the provision of this new law. 
  • Prevents the fine from being paid from public funds.
  • Prevents public funds from being used to reimburse unlawful conduct of the person's charged under this statute with willfully and knowingly violating the provisions of this law. 
  • Allows the local official to be termination from employment or an employment contract and/or removed from office.
  • Provides for injunctive and declaratory relief for persons and organizations specified by the legislation. 
  • Provides for specified damages and interest to be paid on such damages including:
    • attorney's fees in the trial and appellate courts to be determined by the rate used by the federal district court with jurisdiction over the political subdivision for civil rights actions;
    • liquidated damages of three times the amount of certain attorney's fees; and 
    • litigation costs in the trial and appellate courts.
So what do you think of the new legislation?

Circuit Judge Steven S. Stephens Denies Find Florida's Drug Laws Constitutional

A Circuit Court Judge in Tampa, the Honorable Steven S. Stephens, did not waste any time denying motions to find Florida's strict liability drug statute unconstitutional even after the recent federal ruling in Mackle Vincent Shelton v. Secretary, Department of Corrections, et. al., Case No.: 6:07-cv-839-Orl-35-KRS. Instead, Judge Stephens consolidated more than 60 cases into a single hearing on Thursday before denying the motions.

In the Mackle Vincent Shelton decision, U.S. District Judge Mary S. Scriven of Orlando found Florida's drug statute to be unconstitutional on its face as a violation of the due process clause of the Constitution of the United States. The fall out continues as thousands of drug convictions are expected to make their way back through the system in direct appeals, post-conviction motions, and federal writs of habeas corpus.

Thousands of pending cases will also be delayed as judges, prosecutors and criminal defense attorneys struggle with the implications of the decision. Read more at Florida's Drug Statute is Unconstitutional: Blame the Legislature - Tough on Crime, Dumb on Due Process.



Florida's Drug Statutes Unconstitutional: Blame the Florida Legislature

Blame the Florida Legislature - Tough on Crime, Dumb on Due Process

RE: Mackle Vincent Shelton v. Secretary, Department of Corrections, et. al.
Case No.: 6:07-cv-839-Orl-35-KRS






The statutory scheme for Florida's most common drug offenses has been declared draconian and unreasonable. A federal court has declared it unconstitutional on its face as a violation of the due process clause of the Constitution of the United States. If this ruling is upheld on appeal, then thousands of drug convictions under Florida law may be reversed even if no contemporaneous objection was made at trial and even if the issue was not raised on appeal. As prosecutors, defense attorneys and judges scramble to understand the implications, let's take a moment to think about how we got to this point.

The Florida legislature has slowing been chipping away at the bedrock principles of our criminal justice system. Instead of simply requiring the prosecutor to prove that someone committed a crime by purposefully doing some act that was against the law, the legislature has attempted to create shortcuts. For drug cases, the shortcut simply eliminated any requirement that the prosecutor prove that the individual knew he or she was in possession of any drug or contraband. This shortcut goes against well-established principles of American criminal jurisprudence that require a choice between "good" and "evil."

In most cases the mens rea element is not a difficult showing for the prosecution. Many people admit to the law enforcement officer that they knew they possessed the illegal drug. In other cases, the knowledge requirement could be met through circumstantial evidence such as the statements of another witness, fingerprints, the location of the drugs, or the observations of the arresting officer. But eliminating the knowledge requirement completely necessarily means that innocent people will be convicted.

Think about it this way, how hard would it be to frame an innocent person under this statute if the prosecutor never had to show that the individual knew the illegal substances was in their possession. In other cases, if you pick up your roommates backpack that contains their illegal or prescription medication, then you may be guilty of possession even if you did not know the controlled substances were in the backpack. If you driving a friend's vehicle and do not know that drugs are hidden under the backseat (illegal street drugs or even prescription medication), then you could be guilty of possession.

Overreaching by the Florida Legislature - Tough on Crime, Dumb on Due Process

This "shortcut" created by the Florida legislature will now prove to be extreme time consuming and expensive as thousands of convictions go back through the system. Perhaps the Florida legislature will be more careful next time before eliminating a requirement that exists in the other 49 states throughout the country. The Florida legislature should act quickly to undo the damage it created from the 2002 amendment that made the statute unconstitutional. The Florida legislature should again amend Florida's drug statute to include some level of culpable scienter or knowledge that the contraband was actually or constructively possessed as an essential element of the crime.

As the Florida legislature is learning, being tough on crime also requires being smart enough to follow the requirements of the United States Constitution. The requirement that criminal statutes provide some form of mens rea to establish guilt is a firmly rooted principal of our system of justice. Although the Florida legislature should act quickly, no one really expects that it will.

What Happened in the Mackle Vincent Shelton Case


In a case out of the United States District Court for the Middle District of Florida, Orlando Division, U.S. District Judge Mary S. Scriven found Florida's drug statute unconstitutional on its face as a violation of the Constitution of the United State's due process clause. After exhausting all of his appeals with the Florida courts, Macke Vincent Shelton filed for federal habeas corpus relief complaining that Florida Statute Section 893.13 is facially unconstitutional because it entirely eliminated the mens rea element from a drug offense and instead created a strict liability offense that resulted in a sentence of eighteen years in Florida state prison.

Macke Vincent Shelton's appointed attorney for the federal habeas corpus action was James E. Felman of Kynes, Markman & Felman, P.A., in Tampa, Florida. Numerous other organizations and law professors joined in filing "friend of the court" briefs, including the Florida Association of Criminal Defense Lawyers (FACDL), the National Association of Criminal Defense Lawyers (NACDL), the Drug Policy Alliance, the American Civil Liberties Union of Florida, the Calvert Institute for Policy Research, and 38 professors of law from 27 different law schools in the United States.

A copy of the Amicus Brief on why Florida's drug statute is unconstitutional can be found on NACDL's website at: http://www.nacdl.org/public.nsf/newsissues/amicus_attachments/$FILE/Shelton_Amicus.pdf

Impact of the Ruling that Florida's Drug Statute is Unconstitutional 

The opinion is extremely well written and well reasoned and expected by many to be upheld on appeal to the Eleventh Circuit Court of Appeals. The question then becomes: What impact will it have on drug cases throughout Florida for individuals convicted after 2002? Will the Florida legislature act again to eliminate the 2002 amendment that made Florida's drug statute unconstitutional in the first place.

Ways that individuals charged with or conviction of drug crimes can request relief:
  1. Petition for a Federal Writ of Habeas Corpus Under 28 U.S.C. § 2254 for individuals still being incarcerated in Florida State Prison after a conviction for the unconstitutional drug statute.
  2. Direct Appeals that must be initiated within 30 days of the sentencing by filing a notice of appeal.
  3. Motion for Post-Conviction Relief under Florida Rule of Criminal Procedure 3.850 which must normally be filed within two years of the sentencing or the conviction being affirmed on appeal whichever occurred later.
  4. In Florida's Circuit and County Courts for prosecutions of drug crimes under Florida's statute, preventing the prosecutor from using a prior conviction under the unconstitutional statute to enhance the sentence for a subsequent charge, including removing those points from the sentencing score sheet. 
  5. In prosecutions in federal courts, preventing the Assistant United States Attorney (AUSA) from using a prior drug conviction in a Florida prosecution at the state level from being used to enhance a federal sentence or make the individual ineligible for safety value provisions under the Federal Sentencing Guidelines.  
History of Florida's Drug Laws


The Florida Legislature made significant changes to Florida's controlled substance abuse laws, FLA.STAT. § 893.13, as amended by FLA.STAT. § 893.101 on May 13, 2002. The changes enacted in 2002 made Florida the only state to expressly to eliminate mens rea as an element of a drug offense.

In deciding whether Florida Statute Section § 893.13 included guilty knowledge as an element of the crime, the Florida Supreme Court found:
We believe it was the intent of the legislature to prohibit the knowing possession of illicit items and to prevent persons from doing so by attaching a substantial criminal penalty to such conduct. Thus, we hold Florida exempts itself from the age-old axiom: “The act does not make a person guilty unless the mind be also guilty.”
Florida law in statute section 893.02(6) defines the term "delivery" under the drug statutes to mean "the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.”

Prior to 2002 Florida's Drug Statute Required Instruction that "Knowledge" was an Element

In 1996, the Florida Supreme Court found that prosecutors in the State of Florida were required to prove that the person accused "knew of the illicit nature of the items in his possession." Chicone v. State, 684 So. 2d 736, 744 (Fla. 1996).  The Chicone decision also required the trial court to provide for a special jury instruction on the knowledge element.

In 2002, the Florida Supreme Court addressed Florida's statutory scheme for drug crimes and found that  “knowledge is an element of the crime of possession of a controlled substance, a defendant is entitled to an instruction on that element, and . . . [i]t is error to fail to give an instruction even if the defendant did not explicitly say he did not have knowledge of the illicit nature of the substance.” Scott v. State, 808 So. 2d 166, 170-72 (Fla. 2002).

Where the Florida Legislature Got It Wrong

In a knee jerk reaction to the Chicone v. State and more recent Scott v. State decision, the Florida legislature decided to prevent the Florida Supreme Court from inserting the knowledge element into Florida's drug statutes. In May of 2002, the Florida legislature amended Florida's Drug Abuse and Prevention and Control law to provide:
The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 (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.
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.
Lack of Knowledge as an Affirmative Defense under Florida's Drug Statutes

In amending Florida's drug statutes, the Florida legislature effectively removed the "knowledge" element from Florida's drug statute and replaced it with a drastically "affirmative defense" provision that shifting the burden of proof and production to the person accused. The Florida legislature further provided in Florida Statute Section 893.101, the following provision:
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.
This 2002 amendment made Florida's statutory scheme unique from any other state in the country for two reasons:
  1. The amendment made possession, delivery, or trafficking of a controlled substance a general intent crime which no longer required the prosecutor for the State of Florida to prove that the person accused of the drug crime was even aware that the contraband was illegal.
  2. The amendment required the defendant to assert lack of knowledge as an affirmative defense.
  3. If the defendant asserted such an affirmative defense in a case of either actual or constructive possession of the controlled substance, then the jury was instructed on a permissive presumption that "the possessor knew of the substance's illicit nature."
  4. Essentially, the burden was placed on the person accused to rebut the presumption that he knew of the substance's illicit nature.
See Wright v. State, 920 So. 2d 21, 24 (Fla. 4th DCA 2005).

Federal Habeas Corpus Relief from Florida's Unconstitutional Drug Statute

In federal court, a Writ of Habeas Corpus is filed pursuant to 28 U.S.C. § 2254. Relief under this provision is limited to individuals being imprisoned by the state when that conviction is in violation of the Constitution of the United States of America or other clearly established federal laws. But when the appeals in Florida's appellate courts resulted in a per curiam affirmance the decisions have no precedential value and are not an adjudication on the merits. Therefore, in Mackle Vincent Shelton v. Secretary, Department of Corrections, et. al., the federal court found that "no deference is due to the state court’s decision." Instead, Shelton's constitutional challenge to Florida Statute Section 893.13 was then decided under a de novo standard of review.

Under that standard, the federal court found Florida Statute Section 893.13 to be unconstitutionally on its face because it resulted in a strict liability offense which provided for overly broad regulation of otherwise innocuous conduct.

What Should the Public Know About this Ruling?

Perhaps the best way to explain this ruling to the public is to explain what happens when the Florida legislature eliminates the intent, knowledge or mens rea element from other criminal offenses. The opinion asks these questions:
  • Could the legislature amend its murder statute such that the State could meet its burden of proving murder by proving that a Defendant touched another and the victim died as a result, leaving the Defendant to raise the absence of intent as a defense, overcoming a permissive presumption that murder was the Defendant’s intent?...
  • Could the state prove felony theft by proving that a Defendant was in possession of an item that belonged to another, leaving the Defendant to prove he did not take it, overcoming a permissive presumption that he did?
Judges, criminal defense attorneys, and prosecutors throughout the State of Florida will continue to deal with the implications of the Florida legislature's 2002 amendment. The public will surely react with rage as it considers the implications of thousands of drug convictions working their way back through out criminal justice system. Who is to blame? Blame the Florida legislature that continues to attempt to amend and create criminal statutes without a knowledge, intent or mens rea element.

Related News Stories on Constitutionality of Florida's Drug Laws:

Florida Judge Declares State’s Drug Law Unconstitutional - Blog article from the Wall Street Journal Law Blog published on July 27, 2011.

Florida: Drug Laws Ruled Unconstitutional -News article from the New York Times about the federal decision finding Florida's drug law unconstitutional.

Videos on Florida's Unconstitutional Drug Law:



Crime Statistics in Florida: Three Minutes of Justice at Arraignment

More than 500,000 individuals are charged with a misdemeanor crime each year. That number represents roughly 3% of Florida's adult population. A new report on the impact of these misdemeanor cases was written by Sean Maddan, Ph.D., and Alisa Smith, J.D., with the University of Tampa, Department of Criminology and Criminal Justice. The report looks at the statistics showing how many of these cases are resolved at first appearance or arraignment by individuals that do not have an attorney.

Studies on National Crime Statistics for Misdemeanor Offenses

Earlier in 2011, the National Association of Criminal Defense Lawyers (NACDL) published a report called Minor Crimes, Massive Waste that looked at the way misdemeanor cases are resolved throughout the United States.

Studies on Crime Statistics for Misdemeanor Offenses in Florida

The national study was followed up by a statewide study that focused exclusively on the way such cases are handled in various counties throughout the State of Florida. Click here to ready more about crime statistics in Florida and the new study called Three Minute Justice; Haste and Waste in Florida’s Misdemeanor Court. You can read the full report here statistics on misdemeanor arraignments in Florida.

For the cases included in the study:

  1. 70% were resolved at arraignment;
  2. 85% of the misdemeanor arraignments lasted less than 3 minutes; and
  3. 65% of individuals at the misdemeanor arraignment did not have an attorney (either a privately retained attorney, appointed counsel, or an attorney from the public defender's office).
The Impact of Three Minutes of Justice for Individuals without an Attorney

The study goes on to discuss the impact these "three minutes of justice" will have on the individual for the rest of their life, including:
  • The direct consequences announced by the misdemeanor judge including a withhold of adjudication or a conviction, jail time or probation, fines and court costs, jail time, cost of prosecution, cost of supervision, cost of investigation, costs of attend classes for DUI school, drug and alcohol treatment, domestic violence classes, and more.
  • The collateral consequences that are rarely discussed at first appearance or arraignment such as:
    • Being labeled with a conviction for a “crime of dishonesty” which is always an impeachable offense that makes it difficult to pass even the most basic background check;
    • Being convicted of a “drug crime” for the large number of possession of marijuana charges which come with a host of implications for obtaining financial aid, getting scholarships, finding housing, and obtaining employment;
    • Ineligibility to care for foster children under Fla. Stat. §§ 39.001, 39.0121;
    • Loss or denial of employment for state, municipal, or other public employers as provided by Fla. Stat. §§ 943.13, 110.1127, 110.127, 166.0442, and 30.29;
    • Suspension or refusal to grant a dental, nursing or medical license as provided in Fla. Stat. §§ 466.0067, 456.074, and 456.039;
    • Inability to obtain public housing for certain misdemeanor convictions as provided in Fla. Stat. § 60.05; and
    • Suspension of a Florida driver’s license or commercial driving privileges as provided in Fla. Stat. §§ 322.03, and 316.302.
The report contains common sense recommendations that should be a must read for judges, prosecutors, public defenders, and private criminal defense lawyers. As budget cuts put more and more pressure on trial judges to handle such cases with even greater haste, we quickly reach the point that the haste ends up creating an ineffective system is counter-productive for the taxpayers of the State of Florida.

The Hidden Costs Associated with Hasty Decisions

Those individuals tarnished with an unduly hasty decision return to our communities where they are often unable to find employment, return to school, or enjoy the small benefits that those of us without a criminal record take for granted. When the individual commits a serious crime such consequences are justified, but for many minor misdemeanor offenses those "three minutes of justice" may be completely inadequate.

My Two Cents - The Role of the Public Defender

In my opinion, the fastest way to help correct this problem is for public defenders to give a speech before the judge takes the bench explaining what is about to take place and advising those people in the courtroom about the benefits of at least talking to a criminal defense attorney about their options before they enter a plea of guilty or not guilty. When I was a young public defender 10 years ago, our office required us to give such a speech before court began. 

The most important part of the speech - "whether you enter a plea of guilty or whether you enter a plea of not guilty and post bond, you will be released from the jail at the same time." I say that because many people believed that by entering a plea they would be released from custody faster. Other people were irrationally afraid that their family would bond them out even though the family was already in the process of bonding them out of jail.  

We all knew that whether we gave that speech and the way we gave that speech made a huge difference in how many people asked to return with an attorney, how many people asked to have a public defender appointed, and how many people entered a plea of "not guilty."

The judges hated it because it caused fewer people to plead guilty. Some judges called it "soliciting" clients which is kind of silly when you are a public defender. But counteracting that perception that the best thing to do was enter a plea and "get it over with" was important.

The person accused for the first time, young people and lower income individuals are at a huge disadvantage during those three minutes of justice. But at the end of the day the person accused has a responsibility to seek out information and make the best decision for their particular case.

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