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?