Flagg v. State , 1D11–2372.

• Decision Date: 09 November 2011
• Docket Number: No. 1D11–2372.,1D11–2372.
• Citation: 74 So.3d 138
• Parties: Isaac C. FLAGG, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

74 So.3d 138

Isaac C. FLAGG, Appellant,
v.
STATE of Florida, Appellee.

No. 1D11–2372.

District Court of Appeal of Florida, First District.

Oct. 14, 2011.Rehearing Denied Nov. 9, 2011.

[74 So.3d 139]

Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.

WETHERELL, J.

Appellant, Isaac Flagg, appeals his conviction and sentence for possession of crack cocaine and drug paraphernalia. He contends 1) that the trial court erred in denying his dispositive motion to suppress, and 2) that the statute under which he was convicted is facially unconstitutional. We reject both claims and write only to address Flagg's constitutional challenge to section 893.13, Florida Statutes. We affirm the trial court's denial of the motion to suppress without further comment.

On October 11, 2010, at 1:14 a.m., Flagg was stopped in a high drug crime area by a Gainesville police officer for riding a bicycle without a light. Flagg acted aggressively towards the officer after he was stopped. The officer then asked Flagg to open his hand because he appeared to be concealing something and the officer was concerned that it might be a weapon. When Flagg opened his hand, the officer saw what turned out to be two pieces of crack cocaine fall to the ground. Flagg was arrested, and during a search incident to arrest, a crack pipe was discovered in Flagg's pocket.

[74 So.3d 140]

Flagg was charged with possession of a controlled substance in violation of section 893.13(6)(a), a third-degree felony, and possession of drug paraphernalia in violation of section 893.147(1)(b), a first-degree misdemeanor Flagg filed a motion to suppress the drugs and crack pipe on the basis that the stop was illegal. The trial court denied the motion, and Flagg thereafter pled no contest to the charges, reserving the right to appeal the denial of his dispositive motion to suppress. The trial court accepted the plea and sentenced Flagg to 24.975 months in prison for the possession offense and to time served for the paraphernalia offense. This timely appeal follows.

In addition to challenging the denial of the motion to suppress, Flagg argues for the first time on appeal ¹ that section 893.13(6)(a) is unconstitutional because the mens rea requirement in the statute was eliminated by section 893.101, which provides in pertinent part that:

The Legislature finds that 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.§ 893.101(2), Fla. Stat. This, according to Flagg, converted his drug possession offense into a strict...