Make us your home page

Today’s top headlines delivered to you daily.

(View our Privacy Policy)

Judge backs Florida drug possession law, but lawyers' fight goes on

BROOKSVILLE — Defense attorneys didn't win the battle in court Wednesday, but the war over the state's drug possession rule isn't over.

For the second time this month, lawyers from around the state presented motions in a Hernando County courtroom asserting that the Florida's Drug Abuse Prevention and Control law violates the due process clause of the U.S. Constitution's 14th Amendment. At least three Florida judges — one in federal court and two at the circuit level — recently ruled that the statute was unlawful.

Here, Chief Circuit Judge Daniel Merritt Sr. questioned the statute's constitutionality, but he ultimately denied the motions, noting that two of Florida's five District Courts of Appeal have decreed that the rule is constitutional.

In an interview before the hearings this month, prosecutor Donald "Sonny" McCathran said Merritt would be bound by those decisions.

Still, Brooksville attorney Jimmy Brown, among those who filed the motions, wasn't discouraged by the judge's decision.

"The judge said that he agrees with a lot of the points that I raised," Brown said. "And he has significant questions about the viability and the constitutionality of the statute."

Under the law, 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 law was created nearly 10 years ago 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 in 2002 amended the statute, becoming the only state in the nation to eradicate "guilty knowledge," also called mens rea.

The attorneys argue that stipulation makes the statute invalid, and two recent rulings supported their motions: one in August by South Florida Circuit Judge Milton Hirsch and the other on Friday by Tampa-area Circuit Judge Scott M. Brownell.

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."

Brownell further illustrated the point in his opinion, offering three feasible situations in which a person might inadvertently violate the law but still be convicted of the crime: A letter carrier who delivers a package containing unprescribed Adderall; a roommate who is unaware that the person sharing his apartment has hidden illegal drugs in the common areas of the home; a mother carrying a prescription pill bottle in her purse, unaware that the medication has been substituted for illegally obtained drugs by her teenage daughter, who placed them in the bottle to avoid detection.

"As the examples illustrate," Brownell wrote, "even people who are normally diligent in inspecting and organizing their possessions may find themselves unexpectedly in violation of this law, and without the notice necessary to defend their rights." Inevitably, the Brooksville attorney Brown said, the Florida Supreme Court will rule on this issue and, as an extension, determine whether the 97,000 people convicted of the crime since 2002 should be exonerated.

"We're going to get there," Brown said. "It's just a question of when."

John Woodrow Cox can be reached at (352) 848-1432 or

Judge backs Florida drug possession law, but lawyers' fight goes on 09/21/11 [Last modified: Wednesday, September 21, 2011 10:54pm]
Photo reprints | Article reprints

© 2017 Tampa Bay Times


Join the discussion: Click to view comments, add yours

  1. Amazon expands in Tampa with Pop-Up shop in International Plaza


    TAMPA — A new retailer known largely for its online presence has popped up at International Plaza and Bay Street.

    Shoppers walk past the new Amazon kiosk Tuesday at the International Plaza in Tampa. The kiosk, which opened last month, offers shoppers an opportunity to touch and play with some of the products that Amazon offers.
[CHRIS URSO   |   Times]

  2. Andy Serkis' directing debut 'Breathe' is not so inspiring


    After such a revolutionary acting career, Andy Serkis should be expected to make an equally inventive directing debut. Breathe is anything but that.

    Clare Foy and Andrew Garfield star in Breathe as Robin and Diana Cavendish, an English polio victim and his devoted wife, who pioneered disability rights and wheelchairs with ventilators. [Imaginarium]
  3. Federal judge blocks Trump's third travel ban

    A federal judge on Tuesday largely blocked the Trump administration from implementing the latest version of the president's controversial travel ban, setting up yet another legal showdown on the extent of the executive branch's powers when it comes to setting immigration policy.

    Protesters waved signs and chanted during a demonstration against President Donald Trump's revised travel ban outside a federal courthouse in Seattle in May. The third version of Trump's proposal was blocked by a federal judge Tuesday. [AP photo]
  4. The #BrooklynCow delighted Twitter for one glorious afternoon


    In the long tradition of social media delighting in news reports of a non-native animal running loose in an urban setting, Twitter, for a few blissful hours this afternoon, turned its collective …

    A bull was on the loose in Brooklyn for a little while on Tuesday afternoon.
  5. Pinellas, Hillsborough to join forces


    What is this, a crossover episode?

    Hillsborough County school superintendent Jeff Eakins did make an appearance at the Pinellas County School Board workshop Tuesday in a first public move to establish an official partnerships between the two districts.

    Hillsborough County school superintendent Jeff Eakins (center) and Pinellas school superintendent Mike Grego discuss a new partnership between the two districts at a Pinellas County School Board workshop Tuesday in Largo.