Florida is the rare state that eliminates the knowledge requirement for a drug offense conviction, and as a result, many people are being prosecuted for drug possession charges, stated Melinda Morris, a St. Petersburg drug defense lawyer.
St. Petersburg, Florida (PRWEB) October 11, 2011
Many drug defense attorneys throughout Florida are seeking to have their client’s pending drug cases dismissed or overturned if they have already been convicted under one of Florida’s drug laws.
According to an article by Todd Ruger in the Herald-Tribune on September 15, 2011, a Manatee County judge, Judge Scott Brownwell of the Twelfth Judicial Circuit Court of Florida, recently dismissed felony drug charges against 42 defendants. Judge Brownwell is the second Circuit Judge to agree with a Federal Judge’s ruling that Florida’s drug laws are unconstitutional. Judge Milton Hirsch, a judge for the Eleventh Judicial Circuit of Florida in Miami-Dade County, previously dismissed 40 felony drug cases. However, many other circuit judges are still making a decision on the topic.
“Florida’s drug possession laws are too vague and ambiguous to prosecute individuals under,” stated Melinda Morris, a St. Petersburg drug lawyer. Morris continued, “Many attorneys are able to use this uncertain time to achieve much better deals for their clients that often involve drastically reducing drug charges to non-drug related offenses.”
On July 27, 2011, United States District Judge Mary Scriven, a federal judge for the Orlando Division of the Middle District of Florida, held that section 893.101 of the Florida Statutes violated the Due Process Clause of the Fourteenth Amendment (case number: 6:07-cv-839-Orl-35-KRS). Judge Scriven found that since the statute eliminated any knowledge requirement to all drug possession offenses in Chapter 893, the law was unconstitutional and violated due process.
Although the Florida federal opinion is persuasive to Florida Circuit Court State Judges, it is not binding, which means they do not have to follow the opinion when making decisions in their courts.
According to attorney Morris, “It is clear that drug possession charges, such as possession of marijuana, possession of a controlled substance and possession with intent to sell are already being affected in particular areas of the State, including Bradenton, Manatee County.”
Florida Statutes § 893.10 states that knowledge a controlled substance was illegal is not a required element to prosecution for a drug offense.
“Because the Florida controlled substance statutes don’t require mens rea, or a knowledge requirement, an alleged drug offender could innocently, accidentally, unintentionally or mistakenly do some act and be charged with and convicted of a drug offense in Florida. For example, if an individual’s friend rides in their car and then leaves a medication bottle in the car, the driver could be arrested and charged with illegal possession of a controlled substance. This person, although they did not intentionally do anything wrong, could be punished with a severe penalty,” said Melinda Morris, a lawyer for drug possession with intent to sell in St. Petersburg.
The possible offenses in Chapter 893 of the Florida Statutes that do not require an intent or knowledge element include selling, manufacturing, delivering, or possessing with the intent to sell, manufacture or deliver any controlled substance. These offenses could result in a conviction for a misdemeanor of the first degree, or a felony of the third, second or first degree, depending on the substance and amount of the substance.
As defined in sections 775.082, 775.083 and 775.084 of the Florida Statutes, felony drug convictions can incur prison sentences ranging from up to five years imprisonment to 30 years or life imprisonment. Felony drug offense fines can start at $5,000 and increase upwards.
“Florida is the rare state that eliminates the knowledge requirement for a drug offense conviction, and as a result, many people are being prosecuted for drug possession charges. Florida’s drug statutes need to be reinterpreted and updated so that knowledge is an essential element of the crime and there is not an atmosphere of overzealous prosecution,” said Morris.
Florida’s Second District Court of Appeals is set to make a decision on the drug law soon, which will be binding on the circuit court judges in Pinellas, Manatee, Sarasota, Hillsborough and Pasco Counties.
Morris concluded, “Since the law eliminating knowledge was enacted in 2002, close to 100,000 individuals in Florida have been convicted under Florida’s Comprehensive Drug Abuse Prevention and Control Act. A binding state court opinion could ultimately overturn a portion of these convictions.”
Melinda Morris of the Morris Law Firm is a criminal Pinellas County defense attorney who represents individuals accused of felony and misdemeanor crimes, drug offenses, juvenile crimes and driving under the influence (DUI) throughout the Tampa Bay area of Florida, including Pinellas County and the surrounding areas of Hillsborough County, Manatee County, Sarasota County and Pasco County.