Shelton v. Sec'y, Dep't of Corr.

• Decision Date: 27 July 2011
• Docket Number: Case No. 6:07–cv–839–Orl–35–KRS.
• Citation: 23 Fla. L. Weekly Fed. D 11,802 F.Supp.2d 1289
• Parties: Mackle Vincent SHELTON, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et. al., Respondents.
• Court: U.S. District Court — Middle District of Florida

23 Fla. L. Weekly Fed. D 11

802 F.Supp.2d 1289

Mackle Vincent SHELTON, Petitioner,

v.SECRETARY, DEPARTMENT OF CORRECTIONS, et. al., Respondents.

Case No. 6:07–cv–839–Orl–35–KRS.

United States District Court, M.D. Florida,Orlando Division.

July 27, 2011.

Held Unconstitutional

West's F.S.A. §§ 893.13, 893.101 James E. Felman, Katherine Earle Yanes, Kynes, Markman & Felman, Tampa, FL, for Petitioner.

Carmen F. Corrente, Office of the Attorney General, Daytona Beach, FL, for Respondents.

ORDER

MARY S. SCRIVEN, District Judge.

THIS CAUSE comes before the Court for consideration of Mackle Vincent Shelton's Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Dkt. 1); the response filed in opposition thereto (Dkt. 7); Petitioner's Reply (Dkt. 11); the parties' Supplemental Memoranda (Dkts. 25, 31, 36); and the Amicus Brief filed in support of Petitioner. (Dkt. 28) On May 13, 2002, the Florida Legislature enacted changes to Florida's Drug Abuse Prevention and Control law, Fla. Stat. § 893.13, as amended by Fla. Stat. § 893.101. By this enactment, Florida became the only state in the nation expressly to eliminate mens rea as an element of a drug offense. This case, challenging the constitutionality of that law, was filed following Plaintiff's conviction for delivery of cocaine without the jury being required to consider his intent in any respect ¹ and the subsequent imposition of an eighteen year sentence following his conviction. Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court GRANTS Petitioner's request for habeas relief (Dkt. 1), and finds that Fla. Stat. § 893.13 is unconstitutional on its face.

I. BACKGROUNDA. Florida's Legislative Scheme

“Actus non facit reum nisi mens sit rea”—except in Florida.²

Prior to May 2002, Florida law provided, inter alia:

(1) (a) Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, manufacture, or deliver,³ or possess with intent to sell, manufacture, or deliver, a controlled substance. Any person who violates this provision with respect to:

1. A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c) 4., commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

...

(6) (a) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Fla. Stat. § 893.13(1)(a),(6)(a) (2000).

Addressing whether § 893.13 included guilty knowledge as an element of the offense, the Florida Supreme Court opined:

We believe it was the intent of the legislature to prohibit the knowing possession of illicit items and to prevent persons from doing so by attaching a substantial criminal penalty to such conduct. Thus, we hold that the State was required to prove that Chicone knew of the illicit nature of the items in his possession.

Chicone v. State, 684 So.2d 736, 744 (Fla.1996). Additionally, the Florida Supreme Court held that “it was error for the trial court to deny Chicone's request for a special jury instruction on knowledge.” Id. at 746. Subsequently, in Scott v. State, 808 So.2d 166, 170–72 (Fla.2002), the Florida Supreme Court made clear that “knowledge is an element of the crime of possession of a controlled substance, a defendant is entitled to an instruction on that element, and ... [i]t is error to fail to give an instruction even if the defendant did not explicitly say he did not have knowledge of the illicit nature of the substance.”

In direct and express response to the Court's holdings in Chicone and Scott, in May 2002, the Florida legislature enacted amendments to Florida's Drug Abuse Prevention and Control law:

(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 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 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.

Fla. Stat. § 893.101. As explained by one Florida court:

The statute 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. There is a caveat that, once this door is opened, either actual or constructive possession of the controlled substance will give rise to a permissive presumption that the possessor knew of the substance's illicit nature, and the jury instructions will include this presumption. The knowledge element does not need to be proven, but if the defendant puts it at issue, then the jury is going to hear about it, and the defendant must work to rebut the presumption.

Wright v. State, 920 So.2d 21, 24 (Fla. 4th DCA 2005) (internal citation omitted).

Not surprisingly, Florida stands alone in its express elimination of mens rea as an element of a drug offense.⁴ Other states have rejected such a draconian and unreasonable construction of the law that would criminalize the “unknowing” possession of a controlled substance. See, e.g., State v. Bell, 649 N.W.2d 243, 252 (N.D.2002) (noting the legislature amended North Dakota's drug laws in 1989 to include the culpability requirement of “willfully” as an element of the offense of possession of a controlled substance, thereby eliminating possession as a strict liability offense); State v. Brown, 389 So.2d 48, 51 (La.1980) (concluding drug possession cannot be a strict liability crime because it would impermissibly criminalize unknowing possession of a controlled substance and permit a person to be convicted “without ever being aware of the nature of the substance he was given.”). In stark contrast, under Florida's statute, a person is guilty of a drug offense if he delivers a controlled substance without regard to whether he does so purposefully, knowingly, recklessly, or negligently. Thus, In the absence of a mens rea requirement, delivery of cocaine it is a strict liability crime under Florida law. See Fla. Stat. §§ 893.101, 893.13.⁵

B. This Lawsuit and Petitioner's Claims

Petitioner was arrested on October 5, 2004, and charged with eight counts: three counts of aggravated assault with a deadly weapon (Counts I–III); delivery of cocaine (Count IV); one count of fleeing or attempting to elude a law enforcement officer (Count V); driving while license suspended (Count VI); reckless driving causing damage to property or a person (Count VII); and, two counts of criminal mischief (Counts VIII and IX). (Dkt. 8 at A. 39–47) Following a jury trial on June 1, 2005, Petitioner was found guilty as to Counts IV, V, VI, VII, and IX. ( Id. at 182; Dkt. 8 at B. 351–53) Because Petitioner was convicted of Count IV—delivery of cocaine—after the May 2002 changes to Florida's Drug Abuse Prevention and Control law, the jury was not instructed as to knowledge as an element of that offense. ( See Dkt. 8 at B. 338) Rather, on Count IV, the jury was simply instructed as follows:

To prove the crime of delivery of cocaine, the State must prove the following two elements beyond a reasonable doubt:

[1] That Mackle Vincent Shelton delivered a certain substance; and,

[2] That the substance was cocaine.

“Deliver” or “Delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

(Dkt. 8 at B. 338)

Petitioner was declared an Habitual Felony Offender pursuant to Fla. Stat. § 775.084 and sentenced to eighteen years in prison. (Dkt. 8 at A. 179–80, 219) Petitioner appealed his sentence and conviction and Florida's Fifth District Court of Appeal affirmed per curiam. See Shelton v. State, 932 So.2d 212 (Fla. 5th DCA 2006). On August 22, 2006, Petitioner filed a Motion for Post–Conviction Relief pursuant to Fla. R.Crim. P. 3.850. (Dkt. 8 at E.) The trial court denied Petitioner's Motion for Post–Conviction Relief, and Florida's Fifth District Court of Appeal affirmed on March 6, 2007. See Shelton v. State, 951 So.2d 856 (Fla. 5th DCA 2007). (Dkt. 8 at F.) Notably, neither of the appellate decisions analyzed or discussed the federal constitutional issue raised by Petitioner—each court simply affirmed the decisions below. See Shelton v. State, 951 So.2d 856; see also Shelton v. State, 932 So.2d 212. On May 18, 2007, Plaintiff filed the instant petition for federal habeas corpus relief. (Dkt. 1)

Petitioner advances nine grounds as a basis for habeas relief. ( See Dkt. 1 at 5–35) Of initial importance here is ground one, Petitioner's claim that Fla. Stat. § 893.13 is facially unconstitutional because it entirely...