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Defense lawyers say a Florida drug law is unconstitutional

BROOKSVILLE — Just weeks after a pair of court decisions deemed a Florida drug law unconstitutional, a judge soon will rule on an issue that could overturn thousands of convictions and exonerate hundreds of people recently charged with drug crimes.

On Wednesday, defense lawyers from across the state will present motions in Hernando County asserting that the state's drug abuse prevention and control law violates the due process clause of the U.S. Constitution's 14th Amendment.

Under the statute, defendants can be convicted of a felony merely by possessing an illegal drug, regardless of what they mean to do with it or if they even knew what they had is illegal. The attorneys argue that stipulation makes the statute invalid.

Officials with the Hernando State Attorney's Office adamantly disagree and say that when Chief Circuit Judge Daniel Merritt Sr. considers the defense motions in the coming weeks, he'll have no choice but to deny them.

Since the Florida Legislature passed the changes to the law in 2002, two of Florida's five District Courts of Appeal have decreed that the rule is constitutional. Even though Merritt doesn't preside in either of those districts, prosecutor Donald "Sonny" McCathran said Merritt should be bound by those decisions.

Brooksville defense lawyers Jimmy Brown and Peyton Hy­slop, a former judge, say that's not true. They point to a recent ruling in Miami that bucked the district court decisions and determined the statute was unlawful.

The upcoming motions will largely be based on the Aug. 17 ruling by South Florida Circuit Judge Milton Hirsch.

The statute "does not punish the drug dealer who possesses or delivers controlled substances. It punishes anyone who possesses or delivers controlled substances, however inadvertently, however accidently, however unintentionally," Hirsch wrote in his opinion. "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."

The law was created in response to a Florida Supreme Court order that judges should always instruct juries to consider defendants' intent when deciding their guilt or innocence on drug possession charges. Lawmakers, now nearly 10 years ago, amended the statute, becoming the only state in the nation to eradicate "guilty knowledge," also called mens rea.

Defense lawyers say a Florida drug law is unconstitutional 08/31/11 [Last modified: Wednesday, August 31, 2011 11:54pm]
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