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: