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.


The Florida Supreme Court ruled a few hours ago that Florida is a very special place. Here in Florida you can be prosecuted for possession of drugs without having any knowledge about the drugs. Despite a Federal Judge’s courageous opinion finding that Florida drug laws are unconstitutional because due process requires knowing possession in drug cases, our Florida Supreme Court begs to differ. The tragedy of Florida drug laws for  Clearwater Criminal Defense Attorneys is that there is no requirement of knowledge even in trafficking cases where harsh drug sentences of three, ten and fifteen year mandatory minimum sentences are typical.
In every other state in America except Washington (where no knowledge is required for simple possession in close proximity, say a joint found in one’s pocket) and in most civilized countries intent or knowledge of wrongdoing is the first requirement for any prosecution. The law destroys many more lives than the drugs ever could by creating a corrupt system of harsh punishments, prosecutions and false law enforcement drug investigations that remedies such as drug court have fail to correct.

Let’s let our Judges speak for themselves, here are extracts from the majority opinion upholding the constitutionality of the Florida Drug Laws and below that see extracts from the Dissent:

Moreau, Prometheus, 1868

It is within the power of the legislature to declare conduct criminal without requiring specific criminal intent to achieve a certain result; that is, the legislature may punish conduct without regard to the mental attitude of the offender, so that the general intent of the accused to do the act is deemed to give rise to a presumption of intent to achieve the criminal result. The legislature may also dispense with a requirement that the actor be aware of the facts making his conduct criminal…. 

The elements of a crime are derived from the statutory definition. There are some authorities to the effect that infamous crimes, crimes mala in se, or common-law crimes may not be defined by the legislature in such a way as to dispense with the element of specific intent, but these authorities are suspect… In enacting section 893.101, the Legislature eliminated from the definitions of the offenses in chapter 893 the element that the defendant has knowledge of the illicit nature of the controlled substance and created the affirmative defense of lack of such knowledge. The statutory provisions do not violate any requirement of due process articulated by this Court or the Supreme Court. In the unusual circumstance where a person possesses a controlled substance inadvertently, establishing the affirmative defense available under section 893.101 will preclude the conviction of the defendant.

And from the take no prisoners Dissent:

I cannot overstate my opposition to the majority’s opinion. In my view, it shatters bedrock constitutional principles and builds on a foundation of flawed ‘common sense.’ (the majority opinion)…makes neither legal nor common sense to me, offends all notions of due process, and threatens core principles of the presumption of innocence and burden of proof….

What will become of the innocent? The answer to that question in the present context is as inevitable as it is disturbing. Under the majority’s decision and the above examples, the innocent will from the start be presumed guilty. The innocent will be deprived of their right to simply deny the charges and hold the State to its burden of proving them guilty beyond a reasonable doubt. The innocent will instead be forced to assert an affirmative defense, whereupon the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance…

There are many examples of drugs being in close proximity to someone where there was no knowledge such as the case of a man whose mechanic found a stash of half a million dollars worth of cocaine while fixing the breaks of a used van. The owner on being told what had been found in the used car said “my hands went numb,” he’s a lucky man because there’s a Clearwater Criminal Drug Defense Lawyer who knows that if that man had been stopped in St. Petersburg, Largo or in Tampa Bay Florida he could be spending many years in prison or paying a hefty price in time and money to prove his lack of knowledge


So far not one of the Judges in Florida’s 6th Circuit (encompassing Hillsborough, Pinellas, Pasco Counties as well as Tampa, Clearwater & St. Petersburg) has thrown out any drug cases based on Federal District Judge Scriven’s recent well reasoned Federal decision in the Shelton case which declared Florida’s Drug Laws unconstitutional.

However, Circuit Courts in Miami have dismissed some cases and not others. More recently the Circuit Court for the Twelfth Judicial Circuit in Manatee County dismissed 46 cases based on Scriven’s decision that Fla. Stat. section 893.13 was unconstitutional. The State of course immediately appealed. On September 28th, the Second District Court of Appeal entered an order certifying that the issue requires immediate resolution by the Florida Supreme Court. 

On October 12th, the Florida Supreme Court accepted jurisdiction in the case in State v. Adkins, No. SC11-1878. The Florida Supreme Court ordered the parties to file their initial briefs and answer briefs quickly with oral argument was held at the Florida Supreme Court on the sixth of December. 
Clearly, the Florida Supreme Court expects to resolve the split within the Florida Districts quickly, but will it be fast enough to help your favorite Crime Attorney’s clients. See Case Briefs for the Florida Supreme Court.
Listen to the actual oral arguments made to the Supreme Court of Florida and decide for yourself what the Court should do…
Don Quixote & the Dead Mule