Party Time? Is Florida’s Drug Possession and Sale Law Enforceable or Not?

Florida’s Possession of Controlled Substances Law Found Unconstitutional By Federal District Court

(For my follow-up article on the Florida Supreme Court’s decision on this issue, go to “Florida Drug Statute Found Constitutional By Florida Supreme Court”.)

Florida’s Drug Possession Statute, 893.13, was found unconstitutional by the Orlando Federal District Court in Shelton v. Secretary, D.O.C. (M.D. Fla., July 27, 2011).  The grounds for the ruling were based upon the law’s lack of an intent or knowledge requirement as an element of drug related crimes as part of the State’s proof beyond a reasonable doubt.

Florida’s drug possession and sale law, Florida Statute Section 893.13, makes it unlawful “…for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.”  Because the language of this statute only requires intent for the sale, manufacture or delivery of drugs, courts and attorneys long wondered and argued whether it was necessary for the State to prove that someone accused of drug possession knew that the substances found were, in fact, illicit drugs.  Many courts said no and left it up to the accused defendant to raise the issue of his unawareness that the stuff found in his possession were illegal substances.  Some courts went even farther and held that the State was not required to prove knowledge or intent since both were presumed from the doing of the prohibited act. See State v. Medlin, 273 So. 2d 394 (Fla. Supreme Court 1973).  Thus, not only was someone accused of possessing drugs required to bring forth his own evidence to show he didn’t know he had illegal drugs, but also the jury would be told by the judge that they could presume that the defendant was guilty simply because he was found in possession of drugs!  If the injustice of this is not apparent to the reader, consider a case where a fellow student, or co-worker gives you a bag to watch for them and the bag is later found to contain illegal drugs.  By the mere fact that you were found holding the bag you could be charged with drug possession and the State would never have to prove that you had ever known that the stuff in the bag were illegal substances.  And what’s worse, everyone, including the jury, would be able to assume that you must have known, since you were found with the bag.

This obviously unjust treatment of the drug possession law was corrected in 1996 when the Florida Supreme Court, in Chicone v. State, 684 So. 2d 736 (Fla. S.Ct. 1996), held that the drug possession statute had to be read to require proof of guilty knowledge by an accused of the nature of the substances as being illegal.  From then on, whenever the State prosecuted someone for drug possession, sale or delivery, they had to introduce proof that the defendant knew that the pills, powder or weeds discovered on or near him were illegal substances.  This requirement in reality was never as difficult as it might sound at first, since the vast majority of drug users or dealers go to extreme lengths to hide their “stash” from the police, or because they often have other items of drug paraphernalia on or near them, it is often very easy for a jury to see that there is no reasonable way the defendant did not know that they had drugs.  But for those who might very well be innocent, unknowing “patsies” or victims of being in the wrong place at the wrong time, it would be a crucial element of due process to require the State to offer proof beyond a reasonable doubt that they were, in fact, guilty of knowingly possessing illicit drugs.

This rule of law requiring proof of knowledge by the State, however just and fair and necessary it might have been to provide basic due process, still managed to upset certain people, in particular elected legislators in Tallahassee, eager to show that they were tough on crime.  And so, in 2002 the Florida legislature amended the drug possession statute to remove the State’s need to prove intent or knowledge of the possession of drugs by enacting Florida Statute 893.101.  In that statute the Legislature specifically denied that they intended the statute to contain the due process protections as to proof of knowledge required by the Chicone case.  The Legislature even went so far as to say that even if someone accused of drug possession were to present evidence on their own behalf that they didn’t know the substance found on or near them was illegal, there was a presumption that they knew of the illicit nature of the substance.

It was this 2002 amendment to Florida’s possession and sale law that the Federal Court for the Middle District of Florida held to be unconstitutional.  Even though Florida courts may choose to disregard the Federal District Court’s ruling and continue to follow the Legislature’s amended version of Sec. 893.13, the Federal District Court’s ruling is ultimately binding upon Florida law, at least in the Middle District of Florida, which encompasses the Tampa Bay area, including Clearwater, St. Petersburg, Pasco and Sarasota Counties, as well as Jacksonville, Orlando and Ft. Myers.  Federal Courts have the power, pursuant to a writ of habeas corpus, to ultimately release any prisoner held in custody on a sentence by the Florida State courts in this type of case because under the 14th Amendment to the U.S. Constitution, no state, such as Florida, may deprive anyone of due process, which is essentially what the Federal Court in Shelton has said that Florida’s Legislature did by enacting their 2002 amendment to the drug statute.  Thus, even if Florida’s courts continue to convict defendants under the Controlled Substances Law as amended by Sec. 893.101, the Federal District Court can, and probably will, release the defendants upon a writ of habeas corpus.  For that reason it is likely that Florida’s courts will take serious notice of the opinion in Shelton as “persuasive”.

Does this mean that drugs are now legal in Florida?  Not very likely!  The Federal Judge’s opinion declared Florida Statute 893.13, as amended by 893.101, unconstitutional.  Although attorneys will undoubtedly argue what this means to current and future drug possession and sale cases until the Florida Legislature amends the statute, don’t count on law enforcement or the judicial system to stand by and allow drugs to flow freely.  Undoubtedly what will happen now is that the older, pre-2002 version of Florida’s Controlled Substance law will take effect, without the limitations of the Constitutionally offensive Section 893.101, which will be severed from the rest of Chapter 893.  The old version of the Controlled Substance law is essentially the same as the current version, with the exception of the Legislature’s amendment by the addition of Sec. 893.101.  And, without the 2002 amendment, the drug statute will remain modified by the due process requirements of the Florida Supreme Court’s case of Chicone, which requires the State to prove knowledge and intent beyond a reasonable doubt.  So, put away your party hats boys and girls.  Illegal drugs are still illegal in Florida; but the enforcement of that law just got more just, at least in the Middle District of Florida.

Click here for an update to this topic.

About Garry Potts

Attorney Garry L. Potts has practiced law for over 22 years in the Pinellas County and Tampa Bay area. He is a former prosecutor for Pinellas and Pasco Counties, having served for 15 years in that position. Since leaving the State Attorney’s Office for private practice in 2002, Mr. Potts has worked as trial lawyer in civil, criminal and family law. He has extensive experience in the courtroom and in litigation, having tried over 100 jury trials to completion.
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8 Responses to Party Time? Is Florida’s Drug Possession and Sale Law Enforceable or Not?

  1. wendy williams says:

    i will like to speak to u regarding my husband cases, and if the new ruling can help him. thank u

    • Garry Potts says:

      You can schedule a free consultation with Mr. Potts by calling his office at (727) 538-4166. Thanks!

    • Latreva Thomas says:

      i would like to speak to you regarding my husband cases also they all fall under that 893.13 statue and what steps i need to take and if this is going to go in affect and who it applies to.

  2. M Garcia says:

    Garry does this mean if a LPR took a plea in 2006 for posn with intent to sell marijuana who is facing deportation that perhaps a Motion to Vacate and dismiss would perhaps be granted in Miami-Dade?

  3. anon says:

    Any update on the supreme courts view of this ruling?

  4. Christina says:

    Does this apply to possession charges when the drugs were not found on the defendant but on the ground in a public area?

    • Garry Potts says:

      Since the Florida Drug Statute has now been found to be Constitutional and enforceable by the Florida Supreme Court, the same drug possession statute, Sec. 893.13 and Sec. 893.101, will apply. The facts that you describe would involve “constructive possession” and the State would have to prove beyond a reasonable doubt that the defendant at some time exerted control over the illegal item and had knowledge that the illegal item was there. However, because of Sec. 893.101, the State would not, however, have to prove that the defendant knew that the item was an illegal drug. For my follow-up article on the Florida Supreme Court’s decision on this issue, go to “Florida Drug Statute Found Constitutional By Florida Supreme Court”.

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