Courts locked in dispute over validity of Florida's drug law

Miami HeraldAugust 14, 2011 

MIAMI — The legal battle over Florida’s drug law is heating up.

Two Miami-Dade circuit judges have swatted down attempts to capitalize on a controversial Orlando federal court ruling that declared Florida’s drug possession and trafficking law unconstitutional.

Late last week, a state trial judge in Pensacola followed suit, refusing to dismiss 17 cases. The federal judge’s opinion held no sway there, Circuit Judge Paul Rasmussen ruled. Also, late Thursday, another U.S. judge, this time in Jacksonville, disagreed with his federal colleague, ruling that a man’s 15-year sentence under the statute “is lawful” and does not “violate his right to due process.”

The legal drama exploded on July 27, when U.S. Judge Mary Scriven ruled that Florida’s drug law was “draconian” because prosecutors do not have to prove that the accused actually knew they were carrying illegal drugs. Her ruling in Shelton v. Department of Corrections has drawn kudos from defense lawyers and sparked hundreds of requests statewide from defendants seeking their freedom.

Most of those requests are winding their way through the court system. But in recent days, Miami-Dade judges Jorge Cueto and Sarah Zabel, in unrelated cases, declined to toss out drug cases for two defendants, saying that their courts were not bound by Scriven’s ruling.

Cueto, in an order signed Thursday, agreed with Miami-Dade prosecutors that Scriven’s “analysis is flawed.”

At the heart of the issue is Florida’s Drug Abuse Prevention and Control law. In May 2002, the Legislature changed the state’s existing law, removing the burden of authorities to prove that the accused had “knowledge” that they carried illegal drugs, although the defendants could raise that defense at trial.

Scriven’s ruling came in the case of Mackle V. Shelton, 33, of Osceola County. He was convicted in 2005 and is serving 18 years in prison for drug and other charges. He appealed in federal court.

Scriven, a 2008 appointee of President George W. Bush, wrote in her opinion that the law violates a citizen’s right to due process because the punishment, which ranges from 15 to 30 years, was too severe. The law is unfair, Scriven wrote, because people could be carrying drugs unwittingly.

“Consider the student in whose book bag a classmate hastily stashes his drugs to avoid imminent detection. The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty” under the current law, she wrote.

The ruling was immediately lauded by defense lawyers who said the decision was a long time coming.

“The fact that Florida is the only state in the nation that does not require the government to prove the age-old element of intent in drug prosecutions should raise some judicial eyebrows,” said Nellie King, president of the Florida Association of Defense Lawyers. “The public should be aware that the cost of the ‘war on drugs’ has not been worth it because of the resultant loss of constitutional rights.”

Miami-Dade Public Defender Carlos Martinez said last week that he hopes lawmakers “address the issue in the next session and make sure they do it in a way that makes in constitutional.”

The Florida Attorney General’s Office is appealing the ruling and the issue could eventually make its way to the U.S. Supreme Court.

Read the full story at MiamiHerald.com

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