A three-judge panel with the Third District Court of Appeals rejected the holding of Miami-Dade Circuit Judge Milton Hirsch, which dismissed 39 felony possession of drug cases in August of 2011. Senior Judge Alan Schwartz authored the opinion finding that the 2002 version of Florida's drug laws are constitutional. Judge Vance E. Salter and Judge Ivan Fernandez concurred.
The Third District Court of Appeals found that Florida law does not require a prosecutor to prove mens rea or conscious violation of the drug laws. The appellate decision was not based on the order by Judge Milton Hirsch although the issues were the same. Instead, the appellate decision was based on the case of Jasper Little who was convicted on two occasions of selling cocaine, first in 2003 and then again in 2004. He was sentenced to 364 days in prison. Mr. Little represented himself, pro se, in a post-conviction motion.
The opinion is extremely short and quoted below:
Rejecting the holding of Shelton v. Sec'y, Dep't of Corrs., No. 6:07–CV–839–ORL–35–KRS, (M.D.Fla. July 27, 2011) and State v. Washington, No. F11–11019 (Fla. 11th Cir.Ct. Aug. 17, 2011), we hold, as we explicitly did in Taylor v. State, 929 So.2d 665 (Fla. 3d DCA 2006) FN1, that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional. Accord, e.g. Parker v. State, No. 3D11–2575 (Fla. 3d DCA Nov. 9, 2011) (per curiam affirmance citing Taylor ); Holcy v. State, No. 5D10–3437 (Fla. 5th DCA Nov. 1, 2011) (per curiam affirmance citing Flagg ); Edwards v. State, No. 3D11–2437 (Fla. 3d DCA Oct. 26, 2011) (per curiam affirmance citing Taylor ); Flagg v. State, No. 1D11–2372 (Fla. 1st DCA Oct. 13, 2011); Johnson v. State, 37 So.3d 975 (Fla. 1st DCA), rev. denied 51 So.3d 465 (Fla.2010); Miller v. State, 35 So.3d 162 (Fla. 4th DCA 2010); Harris v. State, 932 So.2d 551 (Fla. 1st DCA 2006); Tolbert v. State, 925 So.2d 1148 (Fla. 4th DCA 2006); Smith v. State, 901 So.2d 1000 (Fla. 4th DCA 2005); Burnette v. State, 901 So.2d 925 (Fla. 2d DCA 2005); Wright v.. State, 920 So.2d 21 (Fla. 4th DCA 2005). Accordingly, the order under review denying postconviction relief is Affirmed.
FN1. Taylor states:
The defendant was convicted of possession of cocaine. We reject his primary contention for reversal that section 893.101, Florida Statutes (2003), which overruled Chicone v. State, 684 So.2d 736 (Fla.1996), and eliminated knowledge of the unlawful nature of the offending substance as an element of the crime, is unconstitutional. As was correctly held in Tolbert v. State, 925 So.2d 1148 (Fla. 4th DCA, 2006), Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005), review denied, 915 So.2d 1198 (Fla.2005), Smith v. State, 901 So.2d 1000 (Fla. 4th DCA 2005), review denied, No. SC05–1120, 928 So.2d 336 (April 4, 2006), and Burnette v. State, 901 So.2d 925 (Fla. 2d DCA 2005), however, it is not.So it appears the issue is dead in the Third Circuit unless or until overturned by the Florida Supreme Court. The other district courts in Florida have yet to issue a ruling addressing the issue.