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Florida Supreme Court to decide drug law's constitutionality

BROOKSVILLE — When Jimmy Brown saw it, he got goose bumps. The subject line on the legal document was so stunning, the Brooksville lawyer had to read it twice.

On Wednesday, the state's 2nd District Court of Appeal issued an order asking the Florida Supreme Court immediately to resolve an issue that has sprung up in courtrooms statewide in recent months: whether Florida's Drug Abuse Prevention and Control law violates the due process clause of the U.S. Constitution's 14th Amendment.

If the court strikes down the statute, the ruling would likely overturn thousands of convictions and exonerate hundreds of people recently charged with drug crimes.

In the past 31 years, only about a dozen times has the appellate court deemed an issue so important that it sent the case directly to the Supreme Court and requested an immediate ruling. The appellate court's order was in response to a recent ruling by Tampa-area Circuit Judge Scott M. Brownell, who earlier this month decided the law was unconstitutional.

"Until this important constitutional question is resolved by the Florida Supreme Court, prosecutions for drug offenses will be subject to great uncertainty throughout Florida," the appellate court opinion read. "It will be difficult to reach a final resolution in many of these cases until the issue is resolved."

Under the statute, which was created by the Florida Legislature in 2002, defendants can be convicted of a felony merely by possessing an illegal drug, regardless of what they meant to do with it or if they even knew what they had was illegal. Brown and other lawyers have argued that stipulation makes the statute unlawful.

At least three Florida judges — one in federal court and two at the circuit level — recently ruled that the law was invalid.

In almost every case brought before circuit courts, prosecutors have argued that judges must rule that the statute is valid because two district courts of appeal — including the 2nd — had previously determined that the law is constitutional.

Brown said the new rulings, though, were in response to separate arguments from those the appellate courts had never heard before.

It appears the appellate court agreed with him.

If the judges had sided with prosecutors and believed it was an issue they had already addressed, Brown said, the court would have struck it down and upheld the law's constitutionality.

"They see there are legitimate constitutional issues," Brown said. "It is a tremendously important occurrence."

He believes the Supreme Court will soon accept the case and may even issue a temporary stay on all pending litigation against people charged with the crime. Even if the judges find the law constitutional, which Brown believes they won't, he and other lawyers would push for the U.S. Supreme Court to take the case.

John Woodrow Cox can be reached at (352) 848-1432 or jcox@sptimes.com.

Florida Supreme Court to decide drug law's constitutionality 09/29/11 [Last modified: Thursday, September 29, 2011 10:32pm]
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