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August 17, 2011

State judge finds Florida drug law unconstitutional

Regular readers may recall the news late last month of a federal habeas ruling in Shelton v. Florida DOC, No. 6:07-cv-839-Orl-35-KRS (M.D. Fla. July 27, 2011), finding unconstitutional the operation of Florida's criminal drug laws.  Now, thanks to this post by David Oscar Markus at the Southern District of Florida Blog, I see that now a state circuit judge has relied on Shelton to dismiss indictments against a large group of drug defendants in this lengthy (and amusing) order.  Here is how the important order starts and finishes:

The 39 defendants captioned above are similarly circumstanced in that all are charged withviolation of Fla. Stat. § 893.13. In light of the recent decision in Shelton v. Department of Corrections, No. 6:07-cv-839-Orl-35-KRS, 2011 WL 3236040 (M.D. Fla. July 27, 2011), finding 893.13 unconstitutional, all defendants move for dismissal. I have consolidated these cases for purposes of these motions only.

Shelton has produced a category-five hurricane in the Florida criminal practice community. A storm-surge of pretrial motions (such as those at bar) must surely follow. It is, therefore, essentialthat I adjudicate the present motions promptly. This order has been written in great haste and under great time pressure. As Mark Twain is alleged to have said: "If I'd had more time, I could havewritten you a shorter letter."...

The immediate effect of the present order is the dismissal of charges against all movants –- the overwhelming majority of whom may have known perfectly well that their acts of possession or delivery were contrary to law.  Viewed in that light, these movants are unworthy, utterly unworthy, of this windfall exoneration.  But as no less a constitutional scholar than Justice Felix Frankfurter observed, "It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy.  It is too easy.  History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenlyin the end." Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).

Like the court in Shelton, I find that Florida Statute § 893.13 is facially violative of the DueProcess Clause of the 14th Amendment to the United States Constitution; and, accordingly, that any prosecution brought pursuant to that statute is subject to dismissal.

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August 17, 2011 at 01:48 PM | Permalink


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The court's opinion reminds me of an earlir gem, the likes of which we will probably not see in our lifetimes:

“It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v. United States 116 U.S. 616, 635 (1886)

Posted by: Michael R. Levine | Aug 17, 2011 6:28:07 PM

I wonder if there are other state felonies on which many or most of these defendants can be re-indicted.

Certainly, if the local USA were interested, they could probably be reindicted on federal drug charges (at which time they may be sorry they ever heard of *Shelton*...)

Posted by: Anon | Aug 19, 2011 1:52:12 PM

i am looking up stuff for my brothr-in-law that is in prison

Posted by: billie | Sep 19, 2011 6:55:07 AM

i am currently going through a case of my own in pinellas county as well as my fiance and not only is the jail over crowed with people who have drug charges there is also a problem with the plice brutallity that some of there agenses employe not only that i am very aware of my rights and hope thing change for the better because some small things ruin some ones chance to make up there mistakes from the past that really have the motivation and intellangence to change.

Posted by: shaly | Jan 12, 2012 2:52:24 AM

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