Constitutionality of Florida's Drug Statute
On July 27th, 2011, United States District Judge Mary S. Scriven entered an order in Shelton v. Florida
Department of Corrections finding that Florida Statutes section 893.13 is unconstitutional on its face in that it does not require the State to prove a "knowledge" or "mens rea" element. More specifically, while section 893.13 makes it unlawful for a person to knowingly possess, sell, or deliver a controlled substance, the statute, as written, does not require the state to prove that the accused knew of the illicit nature of the substance. Any ambiguity was resolved in 2002 when the Florida legislature enacted section 893.101, which expressly states that the state is not required to prove the defendant knew of the illicit or unlawful nature of the controlled substance found in his or her actual or constructive possession. Judge Scriven noted in her forty three page order that Florida is the only state is the nation to expressly eliminate mens rea as an element of a drug offense.
On August 17th, 2011, Judge Milton Hirsch in Miami, granted the motions of thirty nine defendants to dismiss their charges under 893.13 based on the ruling in Shelton. In granting the motions, Judge Hirsch echoed Judge Scriven's finding that section 893.13 is facially violative of the Due Process clause of the 14th amendment. In Pinellas and Hillsborough Counties, motions to dismiss based on the purported unconstitutionality of 893.13 have been denied. The Florida Supreme Court will resolve this issue in the coming months.
If you are charged with a violation of Florida Statute section 893 contact The Law Office of Timothy Hessinger, Tampa criminal defense attorneys, to defend your drug charge.