IN THE SUPREME COURT STATE OF FLORIDA CASE NO. SC STATE OF FLORIDA, Petitioner, vs. LUKE JARROD ADKINS, et al., Respondents.

IN THE SUPREME COURT STATE OF FLORIDA CASE NO. SC11-1878 STATE OF FLORIDA, Petitioner, vs. LUKE JARROD ADKINS, et al., Respondents. AN APPEAL FROM THE SECOND DISTRICT COURT OF APPEAL AMICUS CURIAE BRIEF OF THE FLORIDA PROSECUTING ATTORNEYS ASSOCIATION, INC. IN SUPPORT OF THE STATE OF FLORIDA Arthur I. Jacobs, Esquire Fla. Bar No. 108249 General Counsel Florida Prosecuting Attorneys Association, Inc. Yvonne R. Mizeras, Esquire Fla. Bar No. 85152 Jacobs Scholz & Associates, LLC 961687 Gateway Blvd., Suite 201-I Fernandina Beach, FL 32034-9159 (904) 261-3693

TABLE OF CONTENTS PAGE INTRODUCTION 7 SUMMARY OF ARGUMENT 8 ARGUMENT 9 I. Shelton is a federal district court ruling and not binding on Florida courts. 10 II. Shelton lacks even persuasive authority. 16 III. IV. Elimination of the knowledge requirement from 893.13 creates a general intent offense. In the alternative, if the statute creates a strict liability crime, this is constitutional pursuant to Federal and State Constitutions. 20 Section 893.13 does not unconstitutionally shift the burden. 24 V. If this Court determines that 893.13 is required to contain a knowledge element, the remedy would be to declare 893.101 unconstitutional and preserve the constitutional integrity of 893.13. 28 CONCLUSION 31 CERTIFICATE OF SERVICE 32 CERTIFICATE OF TYPE SIZE AND STYLE 32 2

TABLE OF CITATIONS PAGE Almendarez-Torres v. U.S. 523 U.S. 224 (1998) 28 Brazill v. State 845 So. 2d 282, 287 (Fla. 4th DCA 2003) 13 Brown v. Jacksonville 236 So. 2d 141 (Fla. 1st DCA 1970) 10 Burnette v. State 901 So. 2d 925 (Fla. 2d DCA 2005) 15, 25, 26, 27, 30 Chicone v. State 684 So. 2d 736, 741 (Fla. 1996) 7, 13, 28 Cramp v. Board of Public Instruction 137 So. 2d 828 (Fla. 1962) 29 Dean v. United States 129 S.Ct. 1849 (2009) 20 Doe v. Pryor 344 F. 3d 1282, 1286 (11th Cir. 2003) 11 Eastern Air Lines, Inc. v. Department of Revenue 455 So. 2d 311, 317 (Fla. 1984) 29 Flagg v. State 2011 Fla. App. LEXIS 16264 (Fla. 1 st DCA Oct. 14, 2011) 24 Green v. State 602 So. 2d 1306 (Fla. 4th DCA 1992) 16, 20, 21 Harris v. State 932 So. 2d 551 (Fla. 1st DCA 2006) 27, 30 3

Herrera v. State 594 So. 2d 275, 278 (Fla. 1992) 15 In re Winship 397 U.S. 358, 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) 15 Isaacs v. Head 300 F. 3d 1232 (11 th Cir. 2002) 19 Johnson v. State 37 So. 3d 975 (Fla. 1st DCA 2010) 12, 13 Knox v. Secretary, Department of Corrections Case No. 3:10-cv-306-J-20TEM (M.D. Fla. Aug. 11, 2011) 17, 19, 20 Knox v. State 25 So. 3d 563 (Fla. 1st DCA 2010) 17 Mills v. State 58 Fla. 74, 51 So. 278, 281 (1910) 13 Morissette v. U.S. 342 U.S. 246, 260 (1952) 23, 24 Nash v. State 951 So. 2d 1003, 1005 (Fla. 4th DCA 2007) 21 Pardo v. State 596 So. 2d 665, 666 (1992) 11 Scott v. State 808 So. 2d 166 (Fla. 2002)9, 28 9, 28 Shelton v. Secretary, Department of Corrections, 2011 U.S. Dist. LEXIS 86898, 23 Fla. L. Weekly Fed. D 11 (2011) 9-13, 16, 19, 20, 22, 25, 29, 31 Staples v. United States 511 U.S. 600 (1994) 12, 22, 23, 24 4

State v. Cohen 568 So. 2d 49, 51 (Fla. 1990) 15 State v. Dwyer 332 So. 2d 333 (Fla. 1976) 10, 11 State v. Gray 435 So. 2d 816, 819-20 (Fla. 1983) 15 State v. Tirohn 556 So. 2d 447 (Fla. 5th DCA 1990) 29 Titus v. State 696 So. 2d 1257 (Fla. 4th DCA 1997) 11 Thompson v. McNeil Case No. 3:08-cv-178-J-25MCR (M.D. Fla. Jan. 27, 2010) 16, 17, 19, 20 Taylor v. State 596 So. 2d 957 (Fla. 1992) 12, 15, 27 U.S. v. Balint 258 U.S. 250 (1922) 22, 23, 24 U.S. v. Thompson 76 F. 3d 442 (2d Cir.1996) 27 U.S. v. Johnson 968 F. 2d 208, 214 (2d Cir.1992) 27 Williams v. State 45 So. 3d 14 (Fla. 1st DCA 2010) 18, 27 Wright v. Moore 278 F.3d 1245, 1253-56 (11th Cir. 2002) 19, 20 Wright v. State 920 So. 2d 21 (Fla. 4th DCA 2005) 13, 14, 15, 16, 18, 21, 26, 27, 30 5

STATUTES PAGE 893.13, Fla. Stat. 8-10, 12-14, 16-18, 20-22, 24, 28-31 893.101, Fla. Stat. (2002) 8-10, 12-14, 17-18, 21, 23-26, 28-31 6

INTRODUCTION Amicus, the Florida Prosecuting Attorneys Association, Inc., will be referred to as FPAA. Petitioner/Plaintiff will be referred to as the State and the Respondents/Defendants will be referred to as Respondents. Sections 893.13 and 893.101, Florida Statutes, will be referred to as 893.13 and 893.101 respectively. The FPAA, representing the twenty elected State Attorneys, has a strong and compelling interest in this case because the Court s determination may have serious impact on the prosecution of cases that the State Attorneys have pending now, will have in the future, and have prosecuted in the past. 7

SUMMARY OF THE ARGUMENT The Shelton opinion is not binding on Florida courts because it is a federal district court ruling and the only federal precedents binding on Florida courts are those that emanate from the United States Supreme Court. Second, Shelton lacks even persuasive authority. Other federal district courts have ruled on the constitutionality of 893.13 and found it to be constitutional under a proper analysis. Moreover, elimination of the knowledge requirement from 893.13 creates a general intent offense and not a strict liability offense; it does not unconstitutionally shift the burden to the defendant to establish innocence by proving lack of knowledge, as the Shelton court found, but in fact, provides for an affirmative defense of lack of knowledge and once raised, the State has the burden to overcome the defense. Lastly, even in the event this Court finds that 893.13 is required to contain a knowledge element, the remedy would be to sever 893.101 from 893.13 and preserve the constitutional integrity of 893.13. 8

ARGUMENT The Shelton opinion originated from the U.S. District Court for the Middle District of Florida, Orlando Division. That court found the exclusion of a mens rea element to the charges listed in 893.13, as amended by 893.101, converted the offenses listed therein to strict liability offenses. The court further held that the penalties attendant to the offenses listed under 893.13 are too severe for strict liability offenses and therefore the statute is unconstitutional on substantive due process grounds. Section 893.13, as amended, is a direct response by the Florida Legislature to two Florida Supreme Court decisions wherein this Court held that knowledge was an essential element of the State s case in proving violations of 893.13. Subsequent to those decisions, in 2002, the Legislature enacted 893.101 providing for the following: (1) The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 (Fla. 2002) and Chicone v. State, 684 So. 2d 736 (Fla. 1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent. (2) The Legislature finds that the knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter. (3) In those instances in which a defendant asserts the affirmative defense described in this Section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive 9

presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection. The statute removes knowledge of the illicit nature of a controlled substance as an element but expressly permits the affirmative defense of lack of knowledge of the illicit nature of a controlled substance. It is the FPAA s position that (1) Shelton is not binding on Florida state courts; (2) Shelton lacks even persuasive authority; (3) the elimination of the knowledge requirement from 893.13 does not create a strict liability offense; (4) 893.13 does not unconstitutionally shift the burden of proof to the defendant; and (5) in the event, this Court determines that 893.13 requires a knowledge element, the proper remedy is to sever 893.101 from 893.13 and thereby preserving the constitutional integrity of 893.13. I. Shelton is a federal district court ruling and does not bind Florida courts. The Florida Supreme Court, in State v. Dwyer, 332 So. 2d 333 (Fla. 1976), declared the Florida Supreme Court to be the apex of the judicial system in the State of Florida and the only federal court rulings that bind Florida courts are those that emanate from the U.S. Supreme Court. Id. at 335 (quoting Brown v. Jacksonville, 236 So. 2d 141 (Fla. 1st DCA 1970)). It goes without saying then, if the Florida Supreme Court is the pinnacle of this State s judicial system, all Florida 10

courts are bound by its decisions unless the United States Supreme Court has spoken to the contrary. The Eleventh Circuit Court of Appeals also recognizes that state courts are only bound by the decisions of the United States Supreme Court. See Doe v. Pryor, 344 F. 3d 1282, 1286 (11th Cir. 2003) ( The only federal court whose decisions bind state courts is the United States Supreme Court ). In the event a federal court finds a state law unconstitutional based on federal constitutional analysis, the state court ruling will prevail unless or until the United States Supreme Court decides the issue. Moreover a Florida District Court of Appeal takes its direction on matters of federal constitutional law first from the United States Supreme Court and, in the absence of definitive precedent from that Court, from the Florida Supreme Court. Titus v. State, 696 So. 2d 1257 (Fla. 4th DCA 1997). Furthermore, in the absence of inter-district conflict or contrary precedent from the Florida Supreme Court, the decision of a district court of appeal is binding throughout the State. Pardo v. State, 596 So. 2d 665, 666 (1992). Therefore, State trial courts are not bound by Shelton but in fact, precluded from following Shelton because the statute in question was brought before several Florida Appellate courts and those decisions are binding on lower state courts. See State v. Dwyer, 332 So. 2d at 335. (holding that when an issue has been decided the lower courts are bound to adhere to the [c]ourt s ruling when 11

considering similar issues, even though the court believes that the law should be otherwise). The United States Constitution, applied to the States through the Fourteenth Amendment, sets forth minimum standards of common protections for all U.S. citizens. However, each State, through its own Constitution, can provide for greater protections for its citizens. Taylor v. State, 596 So. 2d 957 (Fla. 1992). The Florida Supreme Court stated in Taylor, [u]nder our federalist system of government, states may place more rigorous restraints on government intrusion than the Federal charter imposes; they may not, however, place more restrictions on the fundamental rights of their citizens than the federal Constitution permits. Id. at 961. Therefore, when a District Court of Appeal determines that a State statute complies with Florida s due process protections, it has also determined that the statute complies with due process protections under the Federal Constitution. Every Florida District Court of Appeal that examined the constitutionality of 893.13, in conjunction with 893.101, determined that the statute is constitutional both on state and federal constitutional grounds. For instance, in Johnson v. State, 37 So. 3d 975 (Fla. 1st DCA 2010), the First District Court of Appeal examined 893.13, in the context of Staples v. United States, 511 U.S. 600 (1994); the same opinion used by the U.S. District Court in the Shelton decision. In apposite to Shelton, the First District found that Staples concerned a regulatory offense for the 12

public welfare, and whether clear legislative intent was needed to eliminate the knowledge element. Johnson, 37 So. 3d at 975. The court found that the Florida Legislature clearly expressed its intent in Section 893.101, Florida Statutes. Id. Thus, the Staples opinion has been contemplated by the State court and determined to be irrelevant to 893.13. Other District Courts of Appeal have also found 893.101, as applied to 893.13, constitutional under both the United States and Florida Constitutions. In Wright v. State, 920 So. 2d 21 (Fla. 4th DCA 2005), rev. denied, 915 So. 2d 1198 (Fla. 2005), the defendant raised a constitutional challenge, based on substantive due process grounds, arguing that the elimination of the mens rea requirement was unconstitutional. The Fourth District Court of Appeal found that the statute was constitutional after citing to the 5 th Amendment due process clause of the United States as well as the due process clause of the Florida Constitution, stating: The legislature is vested with broad authority to determine intent requirements in defining crimes. Chicone v. State, 684 So. 2d 736, 741 (Fla. 1996); Mills v. State, 58 Fla. 74, 51 So. 278, 281 (1910). The applicable test is the rational basis standard of review. Brazill v. State, 845 So. 2d 282, 287 (Fla. 4th DCA 2003). Clearly, there is a rational relationship between the legitimate governmental interest in addressing the drug problem and the elimination of the difficult-toprove element of knowledge of a substance s illicit nature. Wright, 920 So. 2d at 23-24. That court examined the statute under the due process provisions of both the Florida and United States Constitutions and determined that the statute did not violate either Constitutions because it shifted the 13

burden to the defendant to disprove knowledge. Instead, the court found that the newly enacted 893.101, did two things: it makes possession of a controlled substance a general intent crime, no longer requiring the state to prove that a violator be aware that the contraband is illegal, and, second, it allows a defendant to assert lack of knowledge as an affirmative defense. Id. at 24. 1 The court then found that this newly enacted Section passed constitutional muster. We recognize that a poorly drawn piece of legislation can create an illusory affirmative defense, requiring a defendant to attempt to prove the case for his or her innocence, but allowing no chance of success. However, such is not the case in this instance. This statute removes guilty knowledge as an element, but does not require the defendant to prove or disprove knowledge. It is optional to raise lack of knowledge as a defense. The statute simply provides that once this defense is utilized, a permissive presumption attaches, allowing the jury to draw an inference from the facts. Id. at 25. Thus, the court concluded that there was a rational reason and purpose for the presumption of knowledge and declared the statute constitutional. Id. Subsequent to Wright, several other District Courts of Appeal examined this issue and found the statutory provision to be constitutional. The Second District Court of Appeal found that the Legislature had the authority to eliminate a specific intent knowledge, and therefore 893.101, as applied to 893.13, is constitutional. 1 As will be discussed in more detail in the following Section, Judge Scriven s order in Shelton relies on the incorrect assumption that Section 893.13, as amended by Section 893.101, Florida Statutes, is a strict liability crime. 14

In Burnette v. State, 901 So. 2d 925 (Fla. 2d DCA 2005), the Second District found that: Due process requires that the State prove an accused guilty beyond a reasonable doubt as to all the essential elements of guilt. In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), 2 cited in State v. Cohen, 568 So. 2d 49, 51 (Fla. 1990). However, it is the prerogative of the legislature to define the elements of a crime and to determine whether scienter is an essential element of a statutory crime. Chicone, 684 So. 2d at 741. Placing on the defendant the burden of proving an affirmative defense is not unconstitutional, because it does not relieve the State of its burden to prove beyond a reasonable doubt all the elements of the crime. Herrera v. State, 594 So. 2d 275, 278 (Fla. 1992). Burnette, 901 So. 2d at 927. Moreover, the Third District in Taylor v. State, 929 So. 2d 665 (Fla. 3d DCA 2006), rev. denied, 952 So. 2d 1191 (Fla. 2007) specifically held that both Wright and Burnett were correct in finding 893.101, constitutional. See also Harris v. State, 932 So. 2d 551 (Fla. 1st DCA 2006) (holding Section 893.101, Florida Statutes did not violate the due process clause of either the United States or the Florida Constitution), quoting State v. Gray, 435 So. 2d 816, 819-20 (Fla. 1983) ( It is within the power of the legislature to declare conduct criminal without requiring specific criminal intent to achieve a certain result; that is, the legislature may punish conduct without regard to the mental 2 The citation to In re Winship clearly shows that the Second District considered the federal due process grounds. 15

attitude of the offender, so that the general intent of the accused to do the act is deemed to give rise to a presumption of intent to achieve the criminal result... ). Furthermore, the Fourth District Court of Appeal also addressed the mens rea component of Chapter 893 offenses. That court made clear offenses listed under 893.13 are general intent crimes. Green v. State, 602 So. 2d 1306 (Fla. 4th DCA 1992); Wright v. State, 920 So. 2d 21 (Fla. 4th DCA 2005). In conclusion, it is well settled that Florida courts are not bound to Federal court decisions unless those decisions flow from the United States Supreme Court. In the absence of a U.S. Supreme Court ruling, a Florida court s ruling on the federal constitutionality of a state law prevails over federal court decisions. Furthermore, absent inter-district conflict or contrary precedent from the Florida Supreme Court, a District Court of Appeal s decision is binding throughout this state and therefore the Shelton opinion should not, and cannot, be followed by Florida courts. II. Shelton lacks even persuasive authority. The issue raised in Shelton has come before two other U.S. District Courts and both have found 893.13 constitutional. In Thompson v. McNeil, Case No. 3:08-cv-178-J-25MCR, United States District Court, Middle District of Florida, Jacksonville Division (January 27, 2010), the U.S. District Court denied a petition for Writ of Habeas Corpus challenging a state court conviction for the sale and 16

delivery of cocaine on the ground that it deprived Petitioner of due process of law and that 893.101 was unconstitutional on its face. Id. at p.1. The Thompson court denied the claim on its merits noting it was rejected by the Florida First District Court of Appeal and thus, there was a qualifying state court decision that rejected Petitioner s claim on its merits. Id. at p.5. Moreover, [t]he Due Process Clause of the Fourteenth Amendment requires the state to prove beyond a reasonable doubt each element of the offense charged. Id. at p.6. The court acknowledged the authority of the Legislature to write elements into crimes and that it is vested with broad authority to determine intent requirements. Id. at p.8, n.3. The court further opined that the statute, as amended in 2002, is a general intent crime and that the amendment does not improperly create an illusory affirmative defense because the burden shifts to the defendant to prove his innocence. Id. at p.10. The court noted that the statute provides for a permissive presumption once the defense of lack of knowledge is raised and that this is not an unconstitutional shifting of the burden of proving an element of the offense. Id. at pp.10-11. On August 11, 2011, the U.S. Middle District Court, Jacksonville Division, found that 893.101, as it applied to 893.13, was facially constitutional in Knox v. Secretary, Department of Corrections, Case No. 3:10-cv-306-J-20TEM. The issue was raised on direct appeal, subsequently per curiam affirmed, Knox v. State, 25 So. 3d 563 (Fla. 1st DCA 2010), and finally raised in the defendant s petition 17

for writ of federal habeas corpus. The U.S. District Court was asked to determine whether the sale or delivery of cocaine was a strict liability offense, and if so, whether it violated due process of law. The court found that the state court s adjudication of this claim was not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts in the light of the evidence presented in the state court proceedings. First, the court found that the defendant s constitutionality claim was not with 893.13 but with 893.101. Second, the court found that the statute did not become a strict liability offense upon enactment of the amendment: Indeed, Knox s assertion that the offense of sale or delivery of cocaine is a strict liability offense is without merit. See Williams v. State, 45 So. 3d 14 (Fla. 1st DCA 2010) (per curiam) (rejecting petitioner s claim that his sentences are unconstitutional because, by virtue of Florida Statutes 893.101, his offense are strict liability offenses for which the maximum sentences that can be imposed consistent with due process are no more than one year in jail), rev. denied, 53 So. 3d 1022 (Fla. 2011); Wright v. State, 920 So. 2d 21, 24 (Fla. 4th DCA 2005) (finding that 893.101 does two things: it makes possession of a controlled substance a general intent crime, no longer requiring the state to prove that a violator be aware that the contraband is illegal, and second, it allows a defendant to assert lack of knowledge as an affirmative defense ) rev. denied, 915 So. 2d 1198 (Fla. 2005). The court found that because 893.101 allows for a defendant to raise an affirmative defense of lack of knowledge, the statute was not a strict liability 18

offense, and thus, the defendant s sentence was lawful and not a violation of due process. The opinions in Thompson and Knox are more persuasive than that in Shelton. The Shelton court made numerous errors including not applying the correct standard of review. A petition for federal writ of habeas corpus is examined pursuant to 28 U.S.C. 2254(d), which states that a state court s adjudication of a claim will be upheld unless it is contrary to, or an unreasonable application of, clearly established federal law. Wright v. Moore, 278 F.3d 1245, 1253-56 (11th Cir. 2002). A per curiam affirmance of a claim is treated as a denial of the claim on its merits. See Isaacs v. Head, 300 F.3d 1232, 1258-60 (11th Cir. 2002) (holding that the AEDPA standard of review applies even if the state courts did not explain its rejection of claims or did not cite to federal authorities in rejecting the claim). In Shelton, the court examined 893.101 and 893.13 de novo after incorrectly finding that a state court per curiam affirmance has no precedential value, and thus, not an adjudication on the merits. After acknowledging that the lower court s decision was per curiam affirmed, the Thompson and Knox courts correctly found that a per curiam decision was an adjudication on the merits, and therefore the state s decision was entitled to deference and the defendant is only entitled to relief if the defendant can show that the state court s rejection of the 19

claim was contrary to, or an unreasonable application of, clearly establish federal law. Wright v. Moore, 278 F.3d 1245, 1253-56 (11th Cir. 2002). Based on established law from the United States Supreme Court, the U.S. District Courts in Thompson and Knox applied the correct standard of review, and should be considered the more persuasive decision by trial courts. Conversely, the Court in Shelton applied an incorrect standard of habeas review. III. Elimination of the knowledge requirement from 893.13 creates a general intent offense. In the alternative, if the statute creates a strict liability crime, this is constitutional pursuant to Federal and State Constitutions. Legislative intent dictates whether scienter is an essential element of a crime. Both state and federal courts have held that absent a clear statement from the legislature that it intends to create a strict liability offense, a mens rea is not dispensed and is presumed. Dean v. United States, 129 S.Ct. 1849 (2009). There is no clear statement, much less any language in 893.101, that indicates the legislature intended to create a strict liability offense. Moreover, removing an element does not convert a general intent crime to a strict liability crime. The legislature merely removed guilty knowledge of the illicit nature of the substance as an element thereby creating a general intent crime. General intent knowledge and guilty knowledge are not interchangeable concepts. The Fourth District Court of Appeal explained this distinction in Green: When we refer to the element of knowledge in a criminal statute, 20

we thus mean guilty knowledge, criminal knowledge, scienter, or mens rea. We distinguish this kind of specific knowledge from the more general kind of knowledge covered by the concept of the general intent to do a certain act The proper construction of these cases is this: If the legislature has omitted the requirement of guilty knowledge in the text of a statutory crime, then guilty knowledge is not an element of that crime, regardless of what the legislature has said in other statutes. Section 893.13(1)(f), the simple possession statute, is an example of such knowledge being omitted. On the other hand, where the legislature has expressly included guilty knowledge as an element of the crime, as it has done in the trafficking statute, Section 893.135, then that knowledge must be proven by the state. Thus when the state need only prove the general intent to do the act, such as in a simple possession charge, it is entitled to an inference of general knowledge from mere evidence of the doing of an act. Id. at 1308-09. Thus, the statutory creation of 893.101, a response to this Court s decision in Chicone, only went to the knowledge of the illicit nature of the substance, and not knowledge of the possession. Nash v. State, 951 So. 2d 1003, 1005 (Fla. 4th DCA 2007). The State is still required to prove general intent with regard to the element of possession. As explained by the Fourth District Court of Appeal in Wright, the statute makes possession of a controlled substance a general intent crime, no longer requiring the state to prove that a violator be aware that the contraband is illegal. Wright v. State, 920 So. 2d 21, 24 (Fla. 4th DCA 2005) Moreover, it allows a defendant to assert lack of knowledge as an affirmative defense and once this door is opened, either actual or constructive possession gives rise to a permissive presumption that the possessor knew of the illicit nature of the substance. Id. Knowledge does not need to be proven but if the 21

defendant puts it at issue, the jury will hear about it and the defendant must work to rebut the presumption. Id. Accordingly, Chapter 893 offenses cannot be considered strict liability offenses because proof of a mens rea still exists and is not dispensed. The Legislature clearly intended for offenses enumerated in 893.13 to be general intent crimes. Furthermore, the United States Supreme Court has addressed constitutional challenges to federal narcotics laws eliminating mens rea as to the knowledge element; upholding the Anti-Narcotics Act of 1914 despite the fact that the act did not require the seller of an illegal narcotic to know the nature and character of the substance he was selling. U.S. v. Balint, 258 U.S. 250 (1922). The court in Balint noted that traditional elements of scienter have been modified with respect to prosecutions for crimes for which the purpose of the statute would be obstructed by such a requirement. Deferring to legislative intent, the Court held that the legislature could eliminate scienter in maintenance of a public policy to achieve a social betterment rather than the punishment of the crimes as in cases of mala in se. Id. at 252. The Supreme Court cited the Balint case approvingly when it decided Staples v. U.S., 511 U.S. 600 (1994), a case upon which the court in Shelton relied heavily, but inaccurately. The Staples decision did not create a bright line tripartite rule for analyzing whether or not a crime is a strict liability offense nor 22

whether it is constitutional. In Staples, the Court specifically stated [w]e emphasize that our holding is a narrow one as it approvingly cited the Court s language in Morissette stating neither this court nor any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. Staples at 607. (citing Morissette v. U.S., 342 U.S. 246, 260 (1952). The court in Staples noted the traditional rule requires a form of mens rea and that offenses that do not require mens rea are disfavored, requiring either express or implied Legislative intent to eliminate mens rea as an element of a crime. Id. at 605. Section 893.101 clearly states the legislative intent to eliminate one element of the crimes of the possession or sale of illegal narcotics under 893.13, namely that the defendant knows the nature of the illicit substance that he either possesses or is actually selling or delivering. In Staples, the U.S. Supreme Court clearly exempted from its analysis of strict liability criminal offenses a well-established category of public welfare offenses, citing to Balint and similar cases regulating necessarily dangerous, deleterious, noxious, harmful, or injurious items. The Court specifically cited to its analysis in Morissette, stating: [w]e have referred to public welfare offenses as dispensing with or eliminating a mens rea requirement or mental element. While use of the term strict liability is really a misnomer, we have interpreted statutes defining public welfare offenses to eliminate the requirement of mens rea; that is the requirement of a guilty mind with respect to an element of the crime. Under such statutes we have not required 23

that the defendant know the facts that make his conduct fit the definition of the offense. Staples, at 607 n.3. Based upon a proper analysis of the U.S Supreme Court line of cases in Balint, Morissette, and Staples, 893.101 and 893.13 regulate crimes against the public welfare in a constitutionally approved manner because the Legislature specifically stated its intention to eliminate knowledge of the illicit nature of the substance as an element. The legislature did not express its intention to create strict liability crimes. As such, the offenses in chapter 893 still retain a general intent mens rea. IV. Section 893.101 does not unconstitutionally shift the burden. A litany of Florida appellate cases previously rejected challenges to the constitutionality of Chapter 893 Sections on due process 3 grounds. In Flagg v. State, 2011 Fla. App. LEXIS 16264 (Fla. 1 st DCA October 14, 2011), the First District Court of Appeal rejected a claim that 893.13 was facially unconstitutional. In that case, Appellant argued that, based upon Shelton, 893.13 was unconstitutional because the mens rea requirement was eliminated by 893.101 and this converted Appellant s drug possession offense into a strict liability crime thereby violating due process because of the felony punishment attendant to the offense. Id. at 3. The court noted that the same argument has been rejected many times by not only that court but other district courts of appeal. Id. at 3 U.S. Const. Amend. V, U.S. Const. Amend. XIV, and Art. 1 9, Fla. Const. 24

3. The court further opined that Shelton is not binding on the court or any other state court and that the analysis in Shelton was unpersuasive because the statute in question does not require a defendant to establish his innocence by proving lack of knowledge; rather the statute provides that if the defense is raised, the state has the burden of proving that the defendant knew of the illicit nature of the drugs. Id. at 4. The court further noted that, because lack of knowledge is not a defense to a true strict liability crime, the fact that 893.101 provides for an affirmative defense undermines Shelton s premise that the offenses are strict liability crimes that cannot be constitutionally punished as felonies. Id. at 5. In Burnette, the defendant was found guilty of, inter alia, possession of diazepam. The defendant contended 893.101 violates due process by shifting the burden to prove he lacked knowledge of the illicit nature of the substance. Id. at 927. Citing to both state and federal law regarding due process, the Second District denied the defendant s claim, stating that due process requires that the State prove an accused guilty beyond a reasonable doubt as to all essential elements however it is the Legislature s prerogative to define the elements of a crime. Id. Placing on the defendant the burden of proving an affirmative defense is not unconstitutional it does not relieve the State of its burden to prove beyond a reasonable doubt all the elements of the crime [a]n affirmative defense does not involve proof of the elements of the offense, but rather concedes the elements 25

while raising other facts that, if true, would establish a valid excuse or justification, or a right to engage in the conduct in question [i]n other words, an affirmative defense says, Yes, I did it, but I had a good reason. Id. at 927-28. Furthermore, the court found that 893.101 expressly states that knowledge of the nature of a substance is not an element of the offense and a defendant charged under this section can concede all the elements of the offense, i.e., possession of a specific substance and knowledge of the presence of the substance, and still be able to assert the defense that he did not know of the illicit nature of the specific substance. Thus, the affirmative defense created by Section 893.101 does not violate due process by abrogating the State's burden of proving the defendant's guilt beyond a reasonable doubt, and Burnette's constitutional challenge must fail. Id. at 927-28. The Fourth District addressed the same issue in Wright. In Wright, the defendant appealed his conviction and sentence for possession of cocaine. Similar to Burnette, the defendant challenged the constitutionality of 893.101 on substantive due process grounds and argued the Legislature shifted the burden to the defense by removing guilty knowledge as an element of possession and adding lack of knowledge of the illicit nature of a controlled substance as an affirmative defense. Id. at 24. The Fourth District disagreed and explained that the statute does not violate either state or federal due process because it is within the purview 26

of the Legislature to determine intent requirements, that the applicable test is rational basis standard of review, and that there is a rational relationship between legitimate governmental interest in addressing the drug problem and eliminating the difficult-to-prove element of knowledge of a substance s illicit nature. Id. at 23. Moreover, the court noted that [a]n affirmative defense does not concern itself with the elements of the offense at all; it concedes them, but asserts a good excuse or reason. Id. Once the defense is raised, the defendant carries the burden of proving the defense yet it remains impermissible to shift the burden of proof of an element of the offense to the defendant. Id. at 23-25. As previously stated, other district courts have cited to Burnette and Wright and uniformly upheld the constitutionality of 893.101, including the Third District. See Taylor v. State, 596 So. 2d 957 (1992); Harris v. State, 932 So. 2d 551 (Fla. 1 st DCA 2006); Williams v. State, 45 So. 3d 14 (Fla. 1 st DCA 2010). Although state courts are bound by these decisions irrespective of the Shelton order, federal courts have similarly held a statutorily created affirmative defense does not unconstitutionally shift the burden of proof to the defendant. U.S. v. Thompson, 76 F. 3d 442 (2d Cir.1996). The fact that the elements of the crime and of the affirmative defense overlap, in the sense that evidence to prove the latter will often tend to negate the former, does not unconstitutionally shift to the defendant the burden of proof on an element of the crime. U.S. v. Johnson, 968 F. 27

2d 208, 214 (2d Cir.1992). Shifting the burden to prove a factor which is not an element of a state statute does not violate due process. Almendarez-Torres v. U.S., 523 U.S. 224 (1998). These federal holdings are consistent with the state law decisions discussed above. Hence, the affirmative defense created from 893.101 does not unlawfully shift the burden and is not unconstitutional. V. If this Court determines that 893.13 is required to contain a knowledge element, the remedy would be to declare 893.101 unconstitutional and preserve the constitutional integrity of 893.13. Finally, if this Court determines that the State of Florida, acting through the Legislature, cannot eliminate the mens rea element of 893.13 through the enactment of 893.101, the remedy would be to declare 893.101 unconstitutional. Section 893.13 is silent on the element of knowledge. In response to this Court s decisions in Scott and Chicone, holding that the State must prove knowledge of the illicit nature of a substance, the Legislature enacted 893.101 indicating these holdings were contrary to legislative intent and that knowledge is not an element of any chapter 893 offenses. Pursuant to 893.101, knowledge is an affirmative defense that when asserted, gives rise to a permissive presumption that the possessor knew of the illicit nature of the substance. Furthermore, it is the Legislature s intent that if this affirmative defense is raised, the jury is to be instructed on the permissive presumption. 893.101, Fla. Stat. (2002). 28

It is a fundamental principle that a statute, if constitutional in one part and unconstitutional in another part, may remain valid except for the unconstitutional portion. Eastern Air Lines, Inc. v. Department of Revenue, 455 So. 2d 311, 317 (Fla. 1984. The test to determine whether an unconstitutional portion can be struck while keeping a statute intact is whether: (1) the unconstitutional provisions can be separated from the remaining valid provisions; (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void; (3) the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed one without the other; and (4) an act complete in itself remains after the invalid provisions are stricken. Cramp v. Board of Public Instruction, 137 So. 2d 828 (Fla. 1962). Therefore, provisions are severable when the constitutional Sections can accomplish the legislative intent without the invalid provisions. State v. Tirohn, 556 So. 2d 447, 449 (Fla. 5th DCA 1990) (citing Eastern Air Lines, Inc. v. Department of Revenue, 455 So. 2d 311 (Fla. 1984)). The entire analysis in Shelton, which concerns the elimination of the mens rea element from 893.13, is based on the language found within 893.101. If there is a violation of due process of law, the proper remedy would be to declare 893.101 unconstitutional and preserve the constitutional integrity of 893.13; thereby returning to the interpretation of the statutory elements of the statute as it 29

was prior to 2002. The Section establishing that the drug offenses do not contain a mens rea element is set forth in a separate statutory provision, 893.101, and is clearly separate from the statutory section which defines the elements of possession of a controlled substance. Thus, the legislative intent to make a criminal offense for the possession of a controlled substance is clearly separate from the legislative intent to eliminate the knowledge element from the possession of a controlled substance. As a result, if only 893.101 is declared unconstitutional, 893.13 would remain, and the law would revert to the law that existed at the time of the enactment of 893.101. This means that the element of knowledge was implicit in the concept of possession as written in 893.13. A review of the state decisions discussed in Shelton demonstrate that the provision that is the focus of the constitutional analysis is 893.101. See Burnette, 901 So. 2d at 926-27 ( we reject Burnette s challenge to the constitutionality of Section 893.101, Florida Statutes (2003)... ); Harris v. State, 932 So. 2d at 552 ( Section 893.101 has been upheld against challenges based on the due process clause. ); Wright, 920 So. 2d at 21 (same). In fact, the U.S. District Court in Knox, clarified the petitioner s argument that 893.13, Florida Statutes was unconstitutional, stating Knox s issue is not with Florida Statutes 893.13(1)(a)1, but with 893.101. 30

CONCLUSION The Shelton order overlooks Florida law and the well established precedents from the Third District and the other Florida District Courts of Appeal. The constitutionality of 893.101, and its application to chapter 893 offenses, has consistently been upheld by Florida courts on federal and state due process grounds. The First, Second, and Fourth Districts, which have been adopted by the Third District, have specifically found that 893.101 does not violate substantive or procedural due process on either a state or federal level. Lastly, Florida appellate courts have held that the Legislature did not delete mens rea and create a strict liability crime through the creation of 893.101. Therefore, based on a correct interpretation of existing precedent in both the Florida courts and the United States Supreme Court, Florida Statutes 893.101 and 893.13 do not violate due process and are constitutional. Finally, even if this Court determines that the Legislature cannot eliminate the mens rea element of 893.13 through the enactment of 893.101, under the doctrine of severability, the remedy would be to declare 893.101 unconstitutional. The charges under 893.13 would not be dismissed but the State would have the burden of proving the defendant s knowledge of the illicit nature of the drugs as set forth in Scott and Chicone. 31

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been delivered to the Office of the Attorney General, Concourse Center 4, 3507 E. Frontage Road, Suite 200, Tampa, FL 33607, James M. Moorman, Esq., Public Defender, Tenth Judicial Circuit, P.O. Box 9000, Bartow, FL 33830, and J. Andrew Crawford, Esq., 2033 Main Street, Ste. 306, Sarasota, FL 34237 by U.S. Mail on this _4 th _day of November, 2011. /s/ Arthur I. Jacobs Arthur I. Jacobs, Esq. General Counsel Florida Prosecuting Attorneys Association, Inc. CERTIFICATE OF TYPE, SIZE AND STYLE I HEREBY CERTIFY that this Comment complies with the font requirements of Fla. R. App. P. 9.210(c)(2). /s/ Arthur I. Jacobs Arthur I. Jacobs, Esq. General Counsel Florida Prosecuting Attorneys Association, Inc. 32