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Attorneys seek dismissal of hundreds of local drug cases

Tampa Bay defense lawyers are asking judges to free hundreds of people from local jails and throw out their drug charges because of a recent ruling by a federal judge.

"It has great potential to open the floodgates," said St. Petersburg defense attorney Frank Louderback, who already has filed motions to dismiss some drug cases because of the new ruling.

U.S. District Judge Mary Scriven of Orlando said in her ruling last week that a "draconian and unreasonable" Florida law violates the U.S. Constitution by allowing people to be convicted of drug possession even if they didn't intend to possess drugs.

For example, a courier could be charged with drug possession for unknowingly delivering a package of drugs; or a student whose friend secretly stows drugs in his backpack could be charged if the drugs were found by police.

Because the judge found the law unconstitutional on its face, "it's as if it doesn't exist," Pinellas-Pasco Public Defender Bob Dillinger said.

That's why lawyers in his office are poised to file motions asking that drug defendants be released from jail until their cases are resolved.

"In essence, they would be in jail on a charge that doesn't exist, if that opinion is upheld," Dillinger said.

Does this mean hundreds of drug suspects will be turned loose? Not necessarily.

Many judges and prosecutors are adamant that Scriven's ruling holds no weight in state courts — at least not yet.

"What we have is a federal opinion that is not final and is not controlling on state courts," said Michael Sinacore, felony bureau chief at the Hillsborough County State Attorney's Office.

Sinacore said many defense attorneys are asking judges to reduce bonds and drop charges, and want prosecutors to strike prior drug convictions from defendant score sheets.

"I'm not aware of any being granted thus far," Sinacore said Thursday.

Said Pinellas-Pasco Chief Assistant State Attorney Bruce Bartlett: "We're not rolling over and playing dead based upon the existing ruling."

Hillsborough Circuit Judge Ronald Ficarrotta said he had a copy of Scriven's ruling beside him at the bench Thursday.

"I have a great deal of respect for Judge Scriven," he said. "But I've denied all the motions."

Ficarrotta said he felt bound to follow opinions upholding the law made by state appellate courts.

Hillsborough Circuit Judge Daniel Sleet, describing Scriven's ruling as "persuasive, but not mandatory," said he is abiding by rulings upholding the law by Florida's 2nd, 3rd and 4th District Courts of Appeal.

Pinellas-Pasco Chief Judge Thomas McGrady said the federal judge's ruling is not yet binding on state courts because the appellate process is not finished.

"It is, in essence, still a pending case," he said.

Tampa defense attorney Grady Irvin said it would take a bold circuit judge to rule the Florida law is unconstitutional.

"The opinion by Judge Scriven is the most well-reasoned and cerebrally articulate opinion a constitutional lawyer could hope for," he said. "But lower-court judges are going to feel their hands are tied by precedent."

Defense lawyers are hoping one of them bucks the system, said Irvin, who is preparing a motion for a marijuana case in New Port Richey.

Other defense lawyers said that even if the ruling doesn't result in immediate dismissals of charges, it could be a bargaining chip in plea negotiations.

Lawmakers also could at some point add the element of intent into the drug law.

"(Scriven) made a really compelling argument that I think is airtight legally," said St. Petersburg lawyer Jeff Brown, who's planning to file motions to dismiss a few dozen cases. "The Legislature should just get together and fix the law. Stop the bleeding, so to speak."

The state has already filed a notice that it will appeal Scriven's ruling.

"We strongly disagree with the federal judge's interpretation of Florida's drug law, and we are hopeful that this matter will be resolved in the Eleventh Circuit Court of Appeals," Attorney General Pam Bondi said Thursday in a statement. "If necessary, we will fight this matter in the United States Supreme Court."

Times staff writer Molly Moorhead and researcher Caryn Baird contributed to this report.

Attorneys seek dismissal of hundreds of local drug cases 08/04/11 [Last modified: Thursday, August 4, 2011 10:10pm]
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