WARNING: THIS IS SOME BORING, BUT NECESSARY CRIMINAL DEFENSE PRACTITIONER ANALYSIS, DO NOT READ WHILE OPERATING HEAVY MACHINERY
With the federal court’s decision in Shelton finding Florida’s drug laws unconstitutional, and a Florida Circuit Court Judge in Dade County agreeing this week to dismiss over 30 felony drug possession cases, the next logical question is–does Shelton carry over to trafficking, and other drug cases?
The Shelton decision was actually on a delivery of cocaine charge. But technically, the decision declared Florida Statute section 893.13 unconstitutional. The trafficking laws are found in a different section, 893.135. One major difference between 893.13 and 893.135 is that 893.13 does not contain the mens rea or “knowing” element–that element was intentionally left out by the legislature (thus–oversimplifying things a bit–it was found unconstitutional).
But oddly enough, the legislature left in the trafficking statute found in 893.135 the “knowing” element. So, could the state argue that the ‘knowing’ element is still in the trafficking statute, and thus it can stand? Not really.
The problem here is that, even though Shelton (& one judge in Dade County) have found 893.13 unconstitutional, it’s really 893.101(2) that’s the big problem. 893.101 states that for all offenses in the 893 chapter, ‘knowledge of the illicit nature of the substance is not an element of any offense under chapter 893’. So, it can then be assumed that, even though the trafficking statute is the only drug chapter to include “knowing”, the rules of statutory construction would dictate that 893.101 controls.
Another odd thing about Florida’s possession of a controlled substance law NOT containing the “knowingly” element–yet trafficking DOES contain the “knowingly” element–is, just what “knowing” is the legislature referring to? It’s possible that the “knowingly” trafficking statute does not apply to “knowing” the illicit nature of the substance. So, who knows? We’ll see soon, I’m sure.