Fifth DCA Rejects Shelton Case: Finds Florida Drug Laws Constitutional

In Carreras v. State issued on March 2, 2012, Florida's Fifth District Court of Appeals rejected a challenge to the facial constitutionality of Florida's drug statutes under the reasoning used by a federal judge in Shelton v. Secretary, Department of Corrections, 23 Fla. L. Weekly Fed. D11 (M.D. Fla. July 27, 2011).  In the Shelton decision, a federal judge found Florida's drug laws to be unconstitutional because they did not contain a mens rea element. Florida's First District Court of Appeals reached a similar conclusion in Flagg v. State, 74 So. 3d 138 (Fla. 1st DCA 2011).

The same issue raised in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So. 3d 117 (Fla. 2011). Now we wait for the decision from the Florida Supreme Court. A the federal level, the Shelton case is currently on appeal to the Eleventh District Court of Appeals.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JANUARY TERM 2012

ARTHUR CARRERAS,
      Appellant,
v.                                                            Case No. 5D11-1777

STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed March 2, 2012

Appeal from the Circuit Court
for Osceola County,
Scott Polodna, Judge.

James S. Purdy, Public Defender, and
Nancy Ryan, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Megan Saillant,
Assistant Attorney General, Daytona
Beach, for Appellee.

PER CURIAM.

Arthur Carreras ["Carreras"] appeals his judgment and sentence for tampering with physical evidence, possession of twenty grams or less of cannabis, and possession of drug paraphernalia.  He argues that his conviction for possession of twenty grams or less of cannabis, and for possession of drug paraphernalia, should be vacated because section 893.101, Florida Statutes (2009) has been held to be facially unconstitutional in Shelton v. Secretary, Dep’t of Corrections, 802 F. Supp. 2d 1289 (M.D. Fla. 2011).

Testimony was presented during the trial that on November 5, 2010, a pick-up
truck took a turn too close, causing the driver's side exterior mirror of the pick-up truck to hit the driver's side exterior mirror of a patrol vehicle.  The law enforcement officer driving the patrol vehicle observed a white male with a beanie cap in the driver's seat of the pick-up truck, and a black male in the passenger's seat of the pick-up truck. The officer followed the pick-up truck and observed the pick-up straddling two lanes. When the officer put on the patrol vehicle's emergency lights to effect a traffic stop, the pick-up truck began to erratically brake and swerve. The officer observed objects simultaneously being thrown out of the driver's side and passenger's side window. The object thrown out of the driver's side window appeared to be larger than that thrown out of the passenger's side window, and was released by a white hand. A second law enforcement officer, who was following the first officer, observed an object being thrown out of the driver's side and passenger's side window of the pick-up truck. While the first officer was effecting a traffic stop, the second officer immediately stopped and retrieved the thrown objects, which were two bags. The second officer took the bags to the site of the traffic stop and gave them to the first officer who, upon visual inspection of the bags, recognized the substance in each to be cannabis. The contents of each bag field tested positive for cannabis. The first officer identified Carreras as the driver of the pickup truck.

At trial, Carreras raised lack of knowledge of the illicit nature of the controlled substance as an affirmative defense to the charge of possession of twenty grams or less of cannabis and the charge of possession of drug paraphernalia. The trial court instructed the jury on the affirmative defense with respect to each of the said charges. The jury returned a verdict of guilty on each of the counts.  We do not credit Carreras' claim that the statute under which he was convicted is facially unconstitutional. To the contrary, this case is an illustration of the logic and propriety of section 893.101, Florida Statutes. We have already rejected the reasoning of the Shelton case.  See Flagg v. 
State, 74 So. 3d 138 (Fla. 1st DCA 2011).
1
We find no merit on the other issues raised by Carreras and decline to address them.

AFFIRMED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

Florida's Drug Laws Constitutional According to Third District Court of Appeals

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.

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?