REVERSED

893.13. A judicial love story. Or -"Possession means less than you think it does."

In a lengthy, Shakespeare and Twain riddled opinion, Judge Milt Hirsch declared to the delight of defense attorneys everywhere that Florida’s drug possession statute- 893.13 was unconstitutional under the Due Process clause of the 14th amendment (this will become important shortly) because the statute does not make knowledge of the illicit nature an element of the offense. Lack of knowledge in the Sunshine State is relegated by the statute to the ash heap of affirmative defenses, like venue or entrapment. 

The prosecution argued that this issue had been settled in Taylor v. State, 929 So.2d 665 (Fla. 3rd DCA 2006) rev. den. by the Florida Supreme Court  952 So.2d 1191 (Fla. 2007) (“tough cookies. Cert. Denied.” Id. ). 

“But would not due process by any other name smell as sweet?” inquired Judge Hirsch, citing to Shelton v. DOC,  802 F. Supp. 2d.  1289 (M.D. Fla. 2011), which found that the statute violated federal due process guarantees. 

So off to the Third DCA went the case with several dozen other defendants piling on.  Judge Rothenberg drew the assignment to write the opinion: 

"The record, however, reflects that the trial judge’s assumption was incorrect, and counsel for the defendants concedes on appeal that the only federal court whose decisions bind state courts is the United States Supreme Court. See State v. Dwyer, 332 So. 2d 333, 335 (Fla. 1976) (“A decision of a Federal District Court, while persuasive if well reasoned, is not by any means binding on the courts of the state.)”

When you’re a trial judge with an order on appeal, it helps to have talented and aggressive counsel fighting for your decision. Pity Judge Hirsch. Under a subheading “Trial court’s failure to follow the law” Judge Rothenberg leads with this gem: “Counsel for the defendants candidly concedes on appeal that the trial court’s presumptions, analysis, and conclusions were completely erroneous, but he agrees with the result.”  Ouch. 

And:  “The result, however, was a dismissal of the charges based on the defendants’ facial constitutional challenge despite binding precedent from this Court and other district courts of appeal. That result can never be 'the correct result.' The correct result would have been to deny the motions to dismiss on the authority of Taylor. The trial court was then free to express its disagreement with Taylor and to request reconsideration of the holding in Taylor en banc. While a lower court is free to disagree and to express its disagreement with an appellate court ruling, it is duty-bound to follow it.” Double ouch. 

But Judge Rothenberg was not done. She has a black belt. She went to Israel to help during the Gulf War. Saddam's Scuds didn't scare her so  she sure ain’t a scared of no federal judge,  as this subheading to her opinion demonstrates: “The trial court relied on a flawed federal trial court order."

Remember, up to this point Judge R has already got the Appellees to admit that the trial court erred in following a non-supreme court federal decision. But that wasn’t enough for her. She wanted to drive a stake through the vampire heart of her federal court colleague’s decision. No rising from the dead for Shelton, to wander the courts of Florida, randomly obtaining dismissals of drug possession cases.  

Shelton said 893.13 created a strict liability crime. Judge Rothenberg said  “nyet!”:  “Section 893.13 does not create strict liability crimes because, although scienter, or “mens rea,” is not an element of these offenses, the statute provides that the defendant’s lack of knowledge may be raised as an affirmative defense.”

There’s more to the analysis of the (flawed?) federal due process analysis, and we have the opinion below for you to peruse. But the opinion’s conclusion makes it crystal clear- without resort to quotes from Twain, Shakespeare, Paradise Lost, or Harold and Kumar go to White Castle- what the trial court should have done:

“The trial court was therefore duty-bound to follow binding precedent, not ignore it.

Reversed.”

Triple ouch. 

3D11-2244