Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Month: August, 2011

Challenges to Florida’s Drug Statute, Section 893.13, Being Used to Preserve Right to Appeal in Martin, St. Lucie, and Indian River Counties

In a recent post, I noted that Miami Dade Circuit Judge Hirsch has dismissed charges against approximately 30 defendants in drug cases, opting to follow an opinion issued by a Federal Judge in the Shelton case.  You may recall that in Shelton, the Court ruled that Florida’s drug possession statute, section 893.13, is unconstitutional because it does not require the State to prove that a defendant actually knew that he, or she, possessed drugs.

Well, it seems that motions to dismiss drug charges are now being filed in Florida’s Treasure Coast counties of Indian River, St. Lucie, and Martin.  The first challenge is set to be heard by Judge Robert Pegg at 3 pm on Tuesday, August 30, 2011, in the case of Donald Hart, Jr.  Although an Assistant State Attorney commented in one report that he expects the motion to be denied because of a previous opinion issued by Florida’s Fourth District Court of Appeal in 2005, the fact that the motion to dismiss is being filed is still important for purposes of appeal.  Even if the likelihood of winning a motion to dismiss seems low, criminal defense attorneys know that it is important to preserve any argument as to the constitutionality of section 893.13 now, as the Shelton case winds its way upward through the courts.

Police Women of Broward County-Prosecution and Defense Working Together to Preserve the Right to a Fair Trial

As many criminal defense attorneys in South Florida are aware, the reality t.v. show called Police Women of Broward County began wrangling with the Broward Public Defender’s Office earlier this summer.  As noted by a Miami Herald report dated July 20, 2011, all the trouble began when one of the Assistant Public Defenders sought to obtain copies of two employment contracts executed by two of the stars of the show.  Apparently, the Assistant Public Defender represents several individuals who were arrested while being filmed for the reality t.v. show, and he is seeking to get copies of the contracts to determine whether the officers had any hidden conflicting interests.

After the State Attorney’s Office failed to turn over copies of the contracts to the defense as part of their discovery, the defense started asking questions.  Why weren’t they produced?  Where are the contracts?   In response, the Broward State Attorney’s Office stated that although they have no objection to the contracts being produced, they didn’t have access to the contracts–the television production company has them.

To the surprise of many, the television production company has refused to turn the contracts over, claiming they contain sensitive competitive information.  The defense has continued to press for their release, and now, the prosecution has joined the defense in an attempt to get copies of the contracts for the Police Women who made the arrests in question.  The Sun Sentinel reports that the Broward State Attorney’s Office has issued subpoenas to the television production company, and that, in response, the television company has filed a motion to quash the subpoenas.

Both the State Attorney and defense now seek to discover whether the Police Women stars have any financial incentives to make arrests.  Ultimately, the issue will be decided by a Judge.  If the Judge determines that the contracts contain information that is relevant to the defense, then the Defendants’ rights to a fair trial will have to take precedence over the television company’s claim of trade secret information.

It’s not very often that we hear about the prosecution and defense working together to see that basic constitutional rights are being protected.  It is great news for this case, but it’s too bad we don’t see more news reports like this.

At Least He Was Honest!

Since it’s the weekend, I thought I’d post something light.

An article in the Sun Sentinel reports that Willie David Rice recently appeared in Federal court to enter a plea to the charge of possession of a firearm by a convicted felon.  Apparently, Rice had been arrested during a raid on a brothel in Broward County, Florida, named the Boom Boom Room.  During the plea colloquy, Judge Dimitrouleas asked Rice to state his line of work.  Rice’s response?  “Criminal.”   The Judge said that in his 22 years on the bench, he has never heard that answer.  Give that man a few points for honesty!

Miami Dade Judge Follows Shelton Order and Declares Florida Statute section 893.13 Unconstitutional; Dismisses Charges Against More Than 30 Defendants

In an Order issued on August 17, 2011, Miami Dade Circuit Court Judge Milton Hirsch found that the Shelton order I discussed in my previous post is binding.  Judge Hirsch’s Order has the effect of dismissing drug charges against more than 30 people.  However, the dismissal is not automatic.  Judge Hirsch stayed the order for one week, granting the State of Florida time to file a notice of appeal.  (As would be expected, an article published by the Miami Herald indicates that the State will appeal the order.)

Not all Judges are ruling as Judge Hirsch.  Many are finding that the Shelton order is not binding, or is otherwise not decided correctly.   As noted in an article published in the Sun Sentinel, two other Miami Dade Judges refused to dismiss drug charges, unlike Judge Hirsch, as did another Judge in Pensacola.  No doubt, litigation over the Shelton ruling is just beginning.  Until this matter is decided by the Florida Supreme Court, and the United States Supreme Court, Florida criminal defense attorneys and their clients should expect a bumpy and unpredictable ride!

Federal Court Declares Florida Drug Statute, section 893.13, Unconstitutional–What now?

In a recent Order in Shelton v. Secretary, Dept. of Corrections, No. 6:07–cv–839–Orl–35–KRS, 2011 WL 3236040, (M.D. Fla. July 27, 2011), the United States District Court for the Middle District of Florida granted a petition for writ of habeas corpus based upon a finding that the statute under which Shelton was convicted, Florida section 893.13, is unconstitutional.

In the Order, the Court examined how, in 2002, the Florida Legislature came to pass Florida’s Drug Abuse Prevention and Control Law, and observed that when the Legislature passed the amendment, Florida became the only State in the nation to eliminate the knowledge element (mens rea) of a drug offense.  The Court observed that even though strict liability criminal offenses have been found to pass constitutional muster in certain instances, no strict liability offense with penalties as harsh as those in Florida section 893.13 has ever been upheld under federal law.  (The Florida statute imposes penalties of 15 years, 30 years, and life imprisonment).

The issuance of this opinion has already unleashed a flurry of activity in criminal cases.  However, people convicted under section 893.13 and Florida criminal defense attorneys need to be aware of the fact that not everyone may entitled to automatic relief.  Why?  Here’s a few things to consider:

1.) Since the Order was issued in a Federal court habeas proceeding, the ruling may not be binding in all the State court cases that are pending right now.  There may be an appeal of this decision, which means that Shelton might effectively remain “up in the air” for some period of time.

2.) Undoubtedly, Florida criminal defense attorneys will be filings motions for relief based on Shelton in cases that are pending in the Florida State courts right now.  However, because the Shelton opinion is not binding upon them until it becomes the law of the land, as declared by the United States Supreme Court, each State court (that is, each Judge) may decide things differently.

3.) For those who were already convicted under section 893.13 before the Shelton opinion issued, the issue of whether Shelton will apply retroactively (backwards) arises.  New rules of law don’t always apply retroactively.

For a starting point on the issue of retroactivity of changes in the law, both substantive and procedural, you may wish to review the cases of Lindh v. Murphy, 521 U.S. 320 (1997), and Teague v. Lane, 489 U.S. 288 (1989).


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