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It was if Judge Scriven tipped over the first domino of an intricate design when she ruled earlier this year that Fla. Stat. 893.13 was unconstitutional. In a lengthy opinion United States District Judge Mary Scriven ruled that Florida’s drug statute was unconstitutional because the Florida Legislature expressly eliminated knowledge as an element of a drug offense in Florida. Florida is the only state in the country that doesn’t require knowledge to be guilty of a violation of the criminal drug statute.
Imagine if you had a friend come over and spend the night, after that friend got in a verbal argument with his/her significant other. Unbeknownst to you, that friend had illegal painkiller’s(common in Florida) in the backpack that was left in the guest room. You find the backpack, and intend to drive it over to the friend’s house. A car runs a red light and hits your car. You call the police to report the accident, and when they arrive they see the pills in a baggie in the open unzipped backpack. The police seize the pills (20 Vicodin tablets), and since you don’t have a prescription, you are arrested for Trafficking in Prescription Drugs. This charge carries a minimum-mandatory prison sentence, and the fact that you didn’t know of the pills being in the backpack doesn’t matter. Sounds far-fetched? In 49 states, yes - in Florida, no.
At least not until the opinion written by Judge Scriven. Her opinion held that Florida’s drug statute was unconstitutional, because it criminalizeds the otherwise lawful conduct outlined above. This federal district court opinion didn’t resolve this issue, however, it just started a complex state/federal appellate journey that lawyers generally only experience in a bar examination question. The federal trial court ruled that due to the harsh potential penalty (up to 30 years for certain drug offenses, the stigma and overboard regulation of otherwise innocuous conduct), the strict liability drug statute isn’t constitutional.
After this ruling, defense attorney’s throughout the state began to raise this issue in any drug case they were defending. If a stature is ruled unconstitutional, and this ruling is upheld on appeal, then all people who have been prosecuted would have been prosecuted on a statute that in reality doesn’t exist anymore. So now not only recent arrests, but individuals on probation, and individuals who have been convicted and have already served their sentence, may be entitled to have their charges dropped. So what does all this mean?
This issue must proceed through the appellate court system for a Supreme Court ruling once and for all. Currently, no judge in Pinellas County has agreed with this ruling on this particular issue, they have just denied the motion without even a hearing. A Circuit Judge in Miami/Dade has granted motions to dismiss on over 49 Defendants due to the unconstitutionally. So now, it depends on where you get arrested as to whether your charge will be dismissed. The Second District Court of Appeals has now certified the issue to the Florida Supreme Court. The First District Court of Appeals has denied the motions to dismiss, and has even gone so far as to rule that the Federal Court ruling, in essence, doesn’t matter. Appellate Attorney’s will strongly disagree with that assessment.
What to expect? Nothing soon. This issue will probably be ruled on sometime next spring by the Florida Supreme Court. Regardless, the issue undoubtedly will be appealed federally to the United States Supreme Court. This legal entanglement will not be over soon. There is one way to fix this problem in the future. If the Florida Legislature will amend Florida’ drug statute to conform with the other 49 states that require prosecutors to prove an individual knew that they were possessing illegal drugs, this problem would not continue to occur
