Tag Archives: section 893.13

State v. Adkins, No. SC11-1878: Drug Possession Statute, Section 893.13 Constitutional

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Well, I’ve finished reading the Florida Supreme Court opinion in State v. Adkins, No. Sc11-1878, and my initial opinion has not changed: disappointed, but not surprised.  I suspect that a lot of other criminal defense and appellate lawyers in South Florida are feeling the same way too.

The rationale for the majority’s holding is not exactly convincing.  In support of its holding that the Florida Comprehensive Drug Abuse Prevention and Control Act (“the Act”) is constitutional, the Court deferred to the Legislature’s broad authority the define the elements of a crime.  Slip op., pgs. 7-8.   Next, the Court cited several decisions from the United States Supreme Court, including United States v. Balint, 258 U.S. 250 (1922), Staples v. United States, 511 U.S. 600 (1994), and United States v. Freed, 401 U.S. 601 (1971) for the proposition that the legislature has the authority to define the elements of a crime for the public welfare.  Slip op., pgs. 8-16.  In support of its conclusion that the omission of a mens rea element did not violate due process, the Court reasoned that (1) the State is still required to prove that a defendant was engaged in the affirmative act of selling, manufacturing, possessing, or delivering a controlled substance; (2) an innocent person can rely on the affirmative defense as contained in the Act; (3) the Act and section 893.13 are rationally related to the Legislature’s goal of controlling drugs with a high potential for abuse; (4) prohibiting the sale, manufacture, delivery, or possession of controlled substances does not impinge on any constitutionally protected rights; (5) common sense and experience support a conclusion that possession without awareness of the illicit nature of the substance is highly unusual; and, (6) the Legislature’s decision to treat lack of knowledge of the illicit nature of the substance as an affirmative defense does not violate due process.  Slip op., pgs. 16-19.  The Court also analogized the affirmative defense to the New York case of People v. Patterson, 347 N.E.2d 898 (N.Y. 1976).  Slip. op., pgs. 19-22.

After reading the majority opinion, I wondered: why did the Court not cite more persuasive, or even more contemporary authority in support of its conclusion that the substitution of the affirmative defense for the mens rea element renders the Act constitutional?  Then, reading the first lines of Justice Pariente’s concurring opinion, I realized the answer: there is nothing more contemporary for the Court to cite!  As noted by Pariente, Although 48 other States have chosen to require the prosecution to prove mens rea as an element of a drug offense, the Florida Legislature opted to eliminate the mens rea element.  Slip op., pg. 23, (Pariente , J., concurring).  Pariente does an adequate job of pointing out some flaws in the majority opinion, and her concurring opinion reads more like a dissent than a concurrence.  But the fact that she concurs in the result is surprising, given number previous dissenting opinions she has authored in criminal cases.  The reasons for her concurrence is also surprising: (1) the Act still requires the State to prove that a defendant had knowledge of the presence of a controlled substance; and, (2) the Act allows a defendant to raise the affirmative defense of lack of knowledge.  Slip op., pg. 24 (Pariente, J., concurring).

After reading Justice Perry’s dissent, I am convinced that Justice Pariente and the majority both failed to adequately recognize two key concepts.  First, the existence of the mens rea element is the cornerstone of American criminal jurisprudence.  Slip  op., pgs. 25, 32-34.  (Perry, J., dissenting).  Second, the elimination of the mens rea element, the substitution of the affirmative defense, and the Florida jury instructions which permit the jury to presume that a defendant had knowledge of the illicit nature of the substance based on mere possession, all combine together to strip people charged with drug offenses of their constitutional presumption of innocence.

What comes next?  Well, for Adkins and the other co-defendants, they go back to square one and get back on the trial docket.  But other people who already stand convicted of drug offenses might wish to consider filing petitions for writ of habeas corpus in state, then federal courts.  Case in point: Shelton v. Sec’y, Dept. of Corr., 803 F. Supp. 2d 1289 (M.D. Fla. 2011). 

I’ve Been Published . . . But I’m Still Waiting for Opinions on Constitutionality of Florida’s Drug Possession and Death Penalty Statutes

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Just a note to say that South Florida’s criminal defense lawyers are still in the “wait and see” mode for opinions to issue in two important cases.  First is State v. Adkins, SC 11-1878.  There, the Florida Supreme Court is considering the constitutionality of Florida’s drug possession statute, section 893.13.  According to the Florida Supreme Court docket, the last significant activity was oral argument and the filing of an amicus brief by the Florida Association of Criminal Defense Lawyers (FACDL, for short) last December.  If you’d like to read my comments on the oral argument, you can view them here.  Some of my other posts on the case can be seen here, here, and here.

Next is Evans v. Tucker, (originally filed as Evans v. McNeil), where the federal appeals court, the United States Court of Appeals for the Eleventh Circuit, may be addressing the constitutionality of Florida’s death penalty scheme.  (I say “may” because the parties’ briefs are not publicly available).  Although the public can access opinions released by the Court, the Eleventh Circuit court docket is not electronically available to the public, so information on that case is much more limited.  And, since a notice of appeal was filed in October of 2011, it may still be several months until an opinion issues.  If you care to monitor the Eleventh Circuit’s opinions as they are issued, you can click here.  (You can either look for the case style, Evans v. Tucker, or the lower court case number, 08-14402-Civ-JEM).  For some of my previous posts on the Evans case, click here and here.

A final note: if you are an attorney who is a member of FACDL, and you’re interested in these cases, you may want to check out an article I wrote in the Winter 2011 edition of the FACDL magazine, Florida Defender.  The article is printed at page 34 of Volume 23, No. 3.  You can also view it from my website by clicking here. (My article has been reprinted with the permission of the Florida Association of Criminal Defense Lawyers.)

Update on Shelton issue: Florida Supreme Court Moves up Oral Argument in State v. Luke Jarrod Adkins et al., SC11-1878

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In a recent post, I mentioned that the Florida Supreme Court has accepted jurisdiction over the case of State v. Luke Jarrod Adkins et al., SC11-1878, to decide the constitutionality of Florida’s drug statute, section 893.13.  Although oral argument had originally been set for December 8, 2011, the docket shows that oral argument has been moved up to December 6, 2011.  The first briefs were due in the Court on November 2, 2011, but do not yet appear in the docket.

Shelton update: Florida Supreme Court Accepts Jurisidiction to Review Constitutionality of Florida’s Drug Possession Statute, Section 893.13, in State v. Luke Jarrod Adkins, SC11-1878

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A quick update on the hot topic that began this last July: Shelton and the constitutionality of Florida’s drug possession statute.  On October 12, 2011, the Florida Supreme Court issued an Order indicating that it will accept jurisdiction to review the constitutionality of Florida’s Drug Possession statute, section 893.13.  As practically every Florida criminal defense attorney knows by now, the Shelton opinion held that the statute is unconstitutional.  Initial, Answer and Reply Briefs are due in the Supreme Court by November 2, November 16, and November 23, 2011, and oral argument is set for December 8, 2011.  You can see the Florida Supreme Court docket for State v. Luke Jarrod Adkins, SC 11-1878, here.  You can see my previous posts on the issue here, here, here, and here.

Several Palm Beach County Judges Find that Florida’s Drug Possession Statute, Section 893.13, is Constitutional

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The Palm Beach Post reports several Judges in the Fifteenth Judicial Circuit in and for Palm Beach County have recently denied motions to dismiss, finding that Florida’s drug possession statute, section 893.13, is constitutional.  According to the report, the Judges who found the statute constitutional are Judges John Kastrenakes, Judge Stephen Rapp, Judge Edward Fine, and Judge Richard Oftedal.

Under the present version of section 893.13, prosecutors are not required to prove that criminal defendants have knowledge of the illicit nature of the drugs.  You may recall from my previous posts on this issue, that Judge Mary Scriven and Judge Milton Hirsch ruled that the elimination of the knowledge requirement rendered the statute unconstitutional.  However, according to the Palm Beach Post report, Judge Katrenakes came to the exact opposite conclusion, and reasoned that the Florida Legislature basically knew what it was doing when it eliminated the knowledge requirement.

The fact that Judges across the State are reaching opposite conclusions as to the constitutionality of section 893.13 can be frustrating for criminal defendants and their attorneys right now.  While one attorney may win a motion to dismiss for his or her client, another attorney may file the exact same motion in another case assigned to a different Judge and lose.  How does that happen?  Well, each Judge has the independence to rule however they fit, until there is a controlling appellate decision.  And since there is no controlling appellate decision at this time, the conflict is likely to continue.

Ultimately, conflict between the Judges will turn out to be a good thing.  Why?  Conflict between the Judges at the trial court level is an indicator that there could be conflict at the next stage: appeals.  And conflict at the appeals stage is a very good thing, because if there is conflict between Florida’s District Courts of Appeal, then the Florida Supreme Court may be forced to take the case to resolve the issue for the entire State.

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

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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.

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

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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).