Florida's First District Court of Appeals recently reaffirmed the constitutionality of Florida Statute 893.13, which was ruled unconstitutional this summer by a Federal Court in Shelton v. Department of Corrections, 2011 WL 3236040 (M.D. Fla. 7/27/11). The case,
Flagg v. State, (1st DCA 10/14/2011), essentially held that
Shelton is not binding on Florida state courts and that the statute is constitutional in the opinion of the Court.
"Shelton is not binding on this court or any other state court, and we see no reason to recede from our settled precedent simply because one federal judge has a different view of the law than this court. Moreover, we do not find the analysis in Shelton persuasive because, among other reasons, the decision misperceives the operation of the affirmative defense in section 893.101. The statute does not, as Shelton implied, require the defendant to establish his innocence by proving a lack of knowledge . . . rather, the statute provides that if the defense is raised, the state has the burden to overcome the defense by proving beyond a reasonable doubt that the defendant knew of the illicit nature of the drugs. . . . Furthermore, because lack of knowledge is not a defense to a true strict liability crime, the availability of the affirmative defense in section 893.101 undermines the essential premise in Shelton that the offenses in section 893.13 are strict liability crimes that may not be constitutionally punished as felonies."
The Court also touched on the fact that the Second District Court of Appeals, which includes Tampa, certified the issue to the Florida Supreme Court for clarification.
"Although we agree that the uncertainty caused by Shelton is affecting the administration of justice around the state and that an expeditious decision from the Supreme Court addressing the constitutionality of section 893.13 is needed, we do not see any reason not to reaffirm our view that the statute is constitutional. Indeed, we believe that a definitive statement from this court reaffirming the constitutionality of section 893.13 notwithstanding Shelton will promote the consistent administration of justice by resolving the issue for the trial courts, thereby allowing drug prosecutions to proceed, at least until the Supreme Court or another district court weighs in on the issue. Of course, defendants remain free to raise the constitutional argument to preserve the issue for appellate or federal review, but this decision will at least preserve the status quo until the supreme court addresses the issue, and it should also address the Second District's legitimate concern in Adkins that, without a definitive ruling from a higher court, different circuits (or even different judges in the same circuit) may continue to take opposite positions on the issue."