On December 15, 2011, the Florida Supreme Court released an interesting opinion in Del Valle v. State, SC08-2001, wherein the Court addressed revocations of probation for failing to pay restitution which is imposed as a term of probation. Reading through the majority opinion shows that the majority was extremely concerned with the principle that people should not be imprisoned based on a mere inability to pay. After examining the constitutionality of the restitution section at issue, section 948.06(5), the Court held that (1) before revoking probation for a failure to pay restitution, a trial court must inquire into a defendant’s ability to pay, and must make an explicit finding, based on the greater weight of the evidence, that the failure to pay was willful; (2) after the State introduces evidence of willfulness, including the defendant’s ability to pay, the burden shifts back to the defendant to prove an inability to pay; and, (3) it is unconstitutional to require the defendant to prove his or her inability to pay by clear and convincing evidence.
The Del Valle opinion is a good opinion to read for a few reasons. First, the majority announced a change with regard to the operation of section 948.06(5), by striking down the clear and convincing standard. (Note, however, that the majority opinion appears to have failed to specifically state what standard is to be applied. I suppose the standard might be the preponderance of the evidence, as that is the standard that is lower than clear and convincing.)
Second, the dissenting opinions of Chief Justice Canady and Justice Lewis persuasively point out the analytical deficiencies of the majority opinion. After I read their dissenting opinions, I re-read the majority opinion, and I have to say that the dissenting Justices made a few well-reasoned points. (I’ll let you form your own opinions on the merits of their positions, though . . .)
Third, at page 25 of the majority opinion, the Court made a statement which caused me to want to review, for a second time, the oral argument recorded in State v. Adkins, SC11-1878. Keep in mind that in Del Valle, the Court considered at length the element of willfulness of failing to pay restitution under section 948.06(5), and who should carry the burden of demonstrating willfulness as between the State and a criminal defendant. In such discussion, the Court made the following statement:
The absence of any recognition or mention of the element of willfulness as a first step in section 948.06(5) could alone render the statute unconstitutional.
Del Valle, SC08-2001, at pg. 25. After reading such statement several times, I realized that this premise is really the crux of the issue in State v. Adkins, SC11-1878. (For those of you who are not well versed on the issues, in Adkins, the criminal defense side is arguing that the drug possession statute, section 893.13, is unconstitutional because the statute lacks the element of knowledge (mens rea)). For a few moments, my mind started to race. I thought, “Wow! Does this mean the Florida Supreme Court might actually be inclined to find that section 893.13 is unconstitutional because it lacks knowledge as an element of the crime?”
I immediately went back to review the archived oral argument, thinking that I might be on to something. I was wrong. After listening to the entire oral argument for a second time, I am still unable to decide which way I think the Court will go. During the State of Florida’s portion of the oral argument, the Assistant Attorney General was peppered with questions from Justices Pariente, Quince, Perry, Labarga, and Chief Justice Canady. The questions focused on the issues of (1) who has to prove knowledge under section 893.13; (2) does the statute require the State to prove that the defendant had knowledge of the illicit nature of the substance; (3) does the availability of an affirmative defense cure any constitutional deficiencies of section 893.13; and, (4) what other statutes, either in Florida, or in other states, lack the element of knowledge? However, when counsel for Adkins took the podium, other interesting points were made by Justices Pariente, Lewis, Quince, and Labarga, as well as Chief Justice Canady. Such points included (1) whether possession of an illegal substance could ever be legal (implying that the knowledge element was perhaps not so important as Adkins would have the Court find); (2) whether people in possession of illegal substances generally know that the substances are illegal anyway; (3) is there really a problem with criminalizing the mere possession of an illegal substance, when the substance is illegal anyway; (4) are there any cases where a truly innocent person has ever been convicted under section 893.13; and, (5) practically speaking, how would the State of Florida ever be able to prove that a defendant had knowledge of the illicit nature of the substance?
I have to admit, those are some interesting, thought-provoking questions. However, there are 3 portions of the oral argument which stand out most in my mind. They are: (1) during the State of Florida’s argument, Justice Perry directly asked the Assistant Attorney General why shouldn’t the burden be on the State to prove that the defendant had knowledge of the illicit nature of the substance; (2) during the defense side of the argument, Justice Lewis stated to counsel for Adkins that he is not so sure that Adkins is able to sustain a facially-based challenge to the constitutionality of the statute, and that perhaps the better approach would have been for the defense to raise an “as applied” challenge; and, (3) during the defense side of the argument, after counsel for Adkins argued that section 893.13 is unconstitutional because it lacks a mens rea element, Chief Justice Canady forcefully interrupted, asking “where is that written?!,” and then continued his disagreement with Adkins’ position, noting that the Legislature is free to define the elements of a statutory offense.
Going back to my original question, the title of this post, does the Florida Supreme Court opinion in Del Valle v. State, SC08-2001, have any implications for the Adkins case? Initially, I thought that yes, the Del Valle opinion did, and that perhaps the implication was that the majority of the Justices might be leaning in favor of Adkins (i.e., declaring section 893.13 unconstitutional). However, after listening to the Adkins oral argument again, and considering the questions posed to the defense, I am not so sure that’s the case. The only thing of which I am sure is that whatever opinion is issued in Adkins, it will not be unanimous, and that it will likely contain one, if not more than one, dissenting opinion.