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Criminal defense lawyers, prosecutors and judges continue to litigate charges brought under Florida Statute Section 893.13, which makes it unlawful for any person to sell, deliver or possess with the intent to sell a controlled substance.  If a defendant is convicted of this offense, he can be sentenced to up to 15 years in prison.  The spate of litigation follows the decision by a Federal judge in Florida earlier this year holding Section 893.13 unconstitutional as a violation of the Due Process Clause of the U.S. Constitution.  The case was Shelton v. Department of Corrections and it has created a surge of similar motions at the trial court level.  The Federal case will be appealed to the Eleventh Circuit and potentially to the U.S. Supreme Court but the decision has already had a profound impact on how these cases are tried in state courts throughout Florida even though such Federal opinions are normally not binding on state court judges.

Shelton v. Department of Corrections

Mackle Sheldon was arrested in 2004 and charged with several crimes in state court, among them the delivery of cocaine in violation of Section 893.13.  Sheldon was convicted of most of the offenses, including the count pertaining to the cocaine, and was sentenced to 18 years in prison.  After exhausting his state court appeals, Sheldon’s criminal defense lawyer sought relief from Federal court.  The Federal judge held that Section 893.13 was unconstitutional because it did not punish the intentional or knowing possession or delivery of drugs.  Instead, it sought to punish even an unintentional or unknowing activity.  Under this statute, a person who picked up her roommate’s gym bag  by mistake and without knowledge that it contained marijuana might be convicted of this offense.  The decision reinforced one fundamental concept in American law: that individuals can only be punished if they are proven to have knowingly and intentionally committed a crime.  This mental state is referred to as the mens rea, literally “a guilty mind”.  To be sure, there are offenses (called “strict liability”) where knowledge is not an element the government is required to prove.  Typically, strict liability offenses are upheld so long as the punishment is not severe, does not result in a substantial stigma, and the offense seeks to regulate inherently dangerous conduct; none of which factors the court found applicable to Sheldon.

Legislative history of Section 893.13 and recent litigation

The Florida legislature enacted the amendment to Section 893.13 in 2002 in response to a Florida Supreme Court case in which a criminal conviction was overturned because the jury was not instructed that knowledge was an element of the crime of possession of a controlled substance.  Taking the rare step of identifying the case by name, the legislature amended the statute to expressly remove any knowledge element from the law, instead requiring the defendant to prove his lack of knowledge as an affirmative defense.  Following the Sheldon decision, several state trial court judges have granted motions filed by defense attorneys dismissing counts charging Section 893.13 offenses.  Some of these cases have been certified for a direct appeal to the Florida Supreme Court due to the large impact of the Shelton decision.

If you have been charged with a violation of Section 893.13, you should consult with an experienced criminal defense lawyer about the effect of the Shelton decision on your case.  If you have already been convicted of this offense, there may still be options for you to seek relief including seek Federal habeas corpus relief, appealing your conviction if done within 30 days of sentence, or seeking post-conviction relief if beyond 30 days from conviction.