Florida drug statute – why it is unconstitutional

Unless you’ve been living under a rock, you know that 893.13 is probably toast.  I heard that Kastrenakes is going to rule tomorrow (Wednesday, 9/7/2011).   Here’s why the statute should be found unconstitutional:

The federal court was construing the federal constitutionality of 893.13 under the due process clause of the 14th amendment.

Shelton lost his direct and collateral appeals – PCAd.  Those appeals did not discuss the federal constitutional issue so it was not a final adjudication on the merits (that is how a federal court could entertain the argument)  It was raised under 2255 habeus relief.

Chicone v State (1996) and Scott v State (2002)held that knowledge was a requirement in every drug case but the legislature enacted a statute that said knowledge of the illicit nature of a substance is not a required element in direct response to Scott and Chicone – it eliminated the mens rea requirement.

Taking this reasoning to another level, intent could be read out of all crimes if the legislature chose to do so.  One thing is for sure: nothing is safe while the legislature is in session.

Note that the drug trafficking statute requires knowledge – 893.135.  However, under 893.13 – small, street level crimes of drug possession and delivery – no knowledge is required.

Shelton is binding b/c of federalism (federal courts interpreting state statutes are generally persuasive) and federal supremacy US const, article 6 (meaning of FL stattues determined by FL courts, but the federal constitutionality is ultimately determined by federal courts.

As Judge Hirsch has stated:

“It punishes anyone who possesses or delivers controlled substances however inadvertently, however accidently, however unintentionally. It reaches beyond those who willfully do wrong, beyond those who negligently do wrong, beyond those who carelessly do wrong, and includes within its wingspan those who meant no wrong…In Shelton, however, there was no point of state law for the federal court to construe, and the federal court engaged in no act of construction. The Florida Supreme Court held not once but twice that a criminal-intent requirement was lacking in § 893.13, unless one were to be judicially interpolated; and the Florida legislature then amended the statute to reject utterly the proposed interpolation. The Shelton court did not construe ‘893.13, i.e., it did not attempt to make the statute‘s meaning clear where the statute‘s meaning had not been made clear previously. The Shelton court did no more than pose the question: Accepting that construction of the state statute which has been made manifestly clear by both the judicial and legislative branches of the state government, is that statute at odds with the Due Process Clause of the 14^th Amendment to the federal constitution?”