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Federal judge rules Florida drug law unconstitutional

A federal judge has declared Florida's drug law unconstitutional, potentially throwing thousands of criminal cases into jeopardy.

U.S. District Judge Mary Scriven of Orlando issued a ruling Wednesday that struck down the state's Drug Abuse Prevention and Control law, saying it violates due process because it doesn't require that prosecutors prove that a person knew he or she possessed illegal drugs.

Lawmakers amended the law in 2002, becoming the only state in the nation to get rid of "guilty knowledge," also called mens rea.

"Not surprisingly, Florida stands alone in its express elimination of mens rea as an element of a drug offense," Scriven wrote in her order. "Other states have rejected such a draconian and unreasonable construction of the law that would criminalize the 'unknowing' possession of a controlled substance."

Local defense lawyers said Scriven's ruling has been a long time coming. And they said the impact could be huge. Many said they intend to file motions to dismiss their drug cases by citing the judge's order.

"It has one of the largest potential effects on criminal law in the past decade," said St. Petersburg lawyer Jeff Brown. "Were talking hundreds of thousands of drug cases."

It was unclear Thursday how prosecutors may respond to defense motions that cite Scriven's ruling. Pinellas-Pasco Chief Assistant State Attorney Bruce Bartlett said he had not read the ruling, and prosecutors in Hillsborough County could not be reached for comment.

Scriven's ruling came in the case of Mackle Vincent Shelton, 33, who was convicted in 2005 of drug charges in Osceola County.

Shelton, currently serving 18 years in prison for delivery of cocaine and other charges, filed a case in federal court on the grounds that a jury wasn't required to consider intent when it decided his case.

That's because lawmakers' changes to the law three years earlier had eliminated the requirement that prosecutors prove that the defendant intended to commit the crime.

"It takes the presumption of innocence and throws it in the garbage can," said Tampa lawyer James Felman, Shelton's attorney.

In essence, Felman and other defense attorneys said, the law shifted the burden of proof to the defense. Scriven's ruling aims to shift it back to prosecutors.

"The ruling brings us in line with the rest of the country," said St. Petersburg defense lawyer Bob Heyman, who is a former prosecutor. "The state should have the burden of proof."

As news of the ruling spread through the legal community on Thursday, defense lawyers said they are preparing to file motions to dismiss their drug cases.

Brown, who also teaches at Stetson Law School, said he has about 25 such cases. He predicted the courts will see a flood of motions.

Heyman predicted a more muted response.

He said the flaw in the current law could ensnare an innocent person — be it a postal carrier who unknowingly delivers an envelope full of drugs or somebody whose friend stashes drugs in his or her backpack without his or her knowledge.

But he said those cases are rare; police usually have some evidence that a person knew he or she possessed drugs.

"I don't see a drastic shift in the way cases are investigated or prosecuted or defended," he said.

But other lawyers noted the judge struck down the entire law, leaving all drug cases vulnerable to appeal or dismissal.

"In declaring the statute unconstitutional on its face, it appears that all drug prosecutions in the state are at risk," said Tampa defense lawyer Eddie Suarez.

Felman called the ruling "courageous," and said it upholds the most fundamental parts of the constitution.

"I'm thrilled," he said. "I think it's probably the biggest win of my career."

He expects the state will appeal but said he's most interested in how the Legislature reacts.

"I think the Legislature must immediately fix the statute," he said. "This is not a close call. No state has ever done this before. Legally, it's beyond the pale."

Kameel Stanley can be reached at kstanley@sptimes.com or (727) 893-8643.

Federal judge rules Florida drug law unconstitutional 07/28/11 [Last modified: Friday, July 29, 2011 12:23am]

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