Criminal Defense
Since 1993
Since 1993
Florida Court Declares Drug Law Unconstitutional!
Finally. It’s hard to believe.
I didn’t think this would happen so quickly. As you know, July 27th, 2011 marked the day that a Federal court in Orlando declared Florida’s drug law unconstitutional (Shelton v. Depart. of Corrections, 2011 WL 3236040 (M.D. Fla. July 27, 2011)). Now a second victory date to mark is today, August 17, 2011,because a Dade County Circuit Court agreed with the Federal court, finding our drug laws violate due process and are thus unconstitutional. As such, this Dade County judge dismissed 39 cases (so far)! To my knowledge, this is the first case following the federal ruling, congratulations!!!
The case is State of Florida v. Robert Washington (and 38 other defendants, Judge Milton Hirsch, Case No. F11-11019, Dade County, August 17, 2011). Florida Circuit Court Judge Hirsch notes in his opinion that the Federal court’s opinion in “Shelton has produced a category-five hurricane in the Florida criminal practice community.” Indeed it has. The Dade County case notes that one of the major problems with Florida’s law is that it punishes possession or delivery of drugs regardless of a person’s knowledge.
Quoting the Shelton court’s opinion on this issue, the Dade court agrees that “There is a long tradition throughout human existence of lawful delivery and transfer of containers that might contain substances under innumerable facts and circumstances: carrying luggage on and off of public transportation; carrying bags in and out of stores and buildings; carrying book bags and purses in schools and places of business and work; transporting boxes via commercial transportation, the list extends ad infinitum. Under Florida’s statute, that conduct is rendered immediately criminal if it turns out that the substance is a controlled substance, without regard to the deliverer’s knowledge or intent”. Shelton, 2011 WL 3236040, at 12.
The reaction of a Florida court has been anticipated, and you can read my previous post regarding the possible judicial reactions. Judge Hirsch in his opinion breaks it down as follows: (1) prosecutors want the court to find the Shelton opinion merely persuasive, not binding on a Florida court. Thus, he reasons “I consider, then, first whether the Shelton decision is binding upon me; and, second, assuming arguendo that it is not binding but merely persuasive, whether I am persuaded by it.”
So, was the Dade court’s opinion based upon the persuasive nature of the Federal opinion, or was it binding? Seems Judge Hirsch found it a little bit of both. The judge noted that there were no cases directly on point in Florida, and the Florida supreme court in Chicone v. State (684 So.2d 736 (Fla. 1996) and Scott v. State (808 So.2d 166 (Fla. 2002) that criminal intent is part of every drug crime in Florida.
More updates to come, but this case is GREAT news for Florida citizens who care about rights and our Constitution…