Are Florida Drug laws unconstitutional? Your favorite Clearwater Criminal Defense Attorney sees Florida Drug laws as flawed in they do not require knowledge of drugs as an element of the offense, an element of the offense being what the State of Florida must prove in order to secure a conviction. 
First, about a year ago Federal District Judge Scriven lofted the ball onto the court for an ace finding Florida Drug laws were unconstitutional. Then the Florida Supreme Court tied the game finding that the Florida Drug laws are constitutional with some brilliant and entertaining arguments by the attorneys

Florida drug laws are constitutional yet the law destroys more lives than the drugs just like  absinthe
Guy du Bois, Absinthe House New Orleans

Now the Federal Appeals Court has decided that yep, those folks on the Florida Supreme Court must be given deference in their interpretation of Florida law; therefore, the controversial Florida Drug Statutes are constitutional and you, my reader with your warm bong, your cold beer, and your frozen pizza, what will you do as this game is finished?
Take heart. As lawyer Rosemary Cakmis reminds us in this email, the decision isn’t as encompassing nor definitive as it may seem:

Remember that Shelton came to federal court by way of a habeas petition under 28 USC 2254. So the attached decision, reversing Judge Scrivens’ famous decision ruling that the Florida drug statute is unconstitutional, is not as devastating as it may seem at first blush. The critical part of the 11th Circuit decision is on the last page:
“To be clear, this Court expresses no view on the underlying constitutional question, as we limit our analysis to AEDPA’s narrow inquiry.” Over the years, section 2254 has been (and continues to be) severely limited. And alleged errors in state court are not reviewed by federal courts under the same standard as federal courts use to review errors in federal proceedings…As relevant here, the federal court can only grant 2254 relief on a claim that the state court adjudicated on the merits if the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 USC s. 2254(d).

Herein lies the problem. Judge Scriven found that a per curiam affirmence is not an adjudication on the merits under Florida law, and so the Florida court was not entitled to deference. The 11th Circuit disagreed, stating that it was compelled to presume the state court in Shelton’s case rendered an “adjudication on the merits,” which is entitled to deference in a 2254 proceeding.

In the end, all that the 11th Circuit decided today in Shelton was that the issue was “novel,” there was no Supreme Court precedent directly on point, and therefore the state court’s decision was not unreasonable. 

Clearwater Criminal Defense Lawyers note that the original issue came to Judge Scriven as a habeas corpus petition, which is a petition from a Florida inmate asking a Federal Judge to release him from prison because he shouldn’t be there. Yet with all this litigation somehow lost is the grim reality of this man named Shelton, his name gracing this case bandied about like a tennis ball slammed in bounds and out, who’ll remain a prisoner serving a long Florida sentence for his drug crime.


A psychologist in California thought he had a great deal on a used van at $14,000. But 14 months later when he had his breaks fixed the mechanic found over half a million dollars of Cocaine. “My hands went numb,” he said.
He’s a lucky man. He’s lucky that the drug cartel missing the cocaine didn’t find him, then lead him toward a life ending accident.  

And he’s especially lucky he doesn’t live in Florida. In Florida, Knowledge of the Cocaine is not required for arrest, prosecution and conviction of Trafficking in Cocaine
In Florida the innocent psychologist could be subjected to life with a 15 year Minimum Mandatory prison sentence, despite a Federal Judge making a finding that the law violates the United States Constitution. Drug Law Unconstitutional

“This insulation isn’t supposed to be here,” the mechanic said, digging behind the panel. But it soon became clear that the tablet-sized objects wrapped in purple and clear cellophane weren’t installed by the manufacturer.
“I’m, like, dumbfounded,” said Preston, who works at Santa Clara Valley Medical Center. “Honest to God, my hands went numb.”
Police quickly arrived and found 14 packages of cocaine hidden in the doors. After impounding the van for closer examination, they found five more above the back wheels, Preston said.
“They told me, ‘You’re so lucky, you’d be in jail for the rest of your life if you got searched in a traffic stop and they found this.’ “
But they also told him something chilling: Take the van back in to the repair shop to check for tracking devices because somebody is probably looking for it. Then get rid of it.
When Preston tried to return the coke-mobile to Thrifty Car Sales this summer for one without drugs, he said a manager was anything but solicitous. She told him he could trade in the van, but only for the current Blue Book value — about $4,000 less by his estimation than he originally paid. He had put about 6,000 miles on the van.
Chrysler van comes fully loaded — cocaine included – San Jose Mercury News
Criminal Defense Attorney and Trial Lawyer for Drug Crimes & DUI in Clearwater, FL
Florida – Drug Laws Ruled Unconstitutional – NYTimes.com
State drug trafficking laws ruled unconstitutional | ruled, state, city – The News Herald

Tampa Bay Police ask your help in finding the original owners of this Vehicle:
Italy: Sicilian working cart,1890.


Will Florida’s 6th Circuit Judges in Pinellas, Tampa Bay, St. Petersburg, Clearwater and Largo Florida have the political courage to follow Judge Scriven’s recent well reasoned federal decision? Miami Judges are finding Florida Drug laws unconstitutional, but the consequences for their decisions are less severe than in Tampa Bay.  So the question might be better urged as must the judges follow the law as given by the Federal Judge? The answer will come from how the Supreme Court of Florida interprets Florida Drug law.
The applicability of Judge Scriven’s decision in Shelton — that the Fla Drug statute is unconstitutional on its face — cannot be overstated — for state and federal cases. Some of you that you have raised this issue before and are glad for the opportunity of raising it again while working on ideas for its application in federal cases — which regularly apply enhancements based on prior Florida drug convictions. 

Here are some interesting ideas about the federal ruling finding Florida’s drug laws unconstitutional:

The court noted that no other strict liability statute carrying the penalties of the magnitude of § 893.13 has been upheld under federal law... the court ruled that § 893.13 regulates inherently innocent conduct because it does not require even a minimal showing that the Defendant knew he was delivering any illicit substance as an element of the offense charged. The court explained that there is along tradition of lawful delivery and transfer of containers that might contain substances – carrying luggage on and off public transportation, bags in and out of stores, carrying book bags and purses, transporting boxes via commercial transportation. 

The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty based upon the only two elements of the statue: delivery (actual, constructive, or attempted),and the elicit nature of substance. The victim would be faced with the Hobson’s choice of pleading guilty or going to trial where he is presumed guilty because he is in fact guilty of two elements. He must then prove his innocence for lack of knowledge against the permissive presumption the statute imposed that he does in fact have guilty knowledge. Such an outcome is not countenanced under applicable constitutional proscriptions.

What this boils down for Clearwater Federal Defense Lawyers is that Judge Scriven believes Florida law allows a Defendant to be prosecuted and found guilty of possession of drugs even if the Defendant has no knowledge of the drugs.  Knowledge is the linchpin of any criminal act. How can someone be guilty of possessing drugs unless there’s proof the person knew of the drugs and without knowledge how could there be real possession?