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Shelton Habeas Order

Shelton Habeas Order

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Published by Erin Sullivan

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Categories:Types, Business/Law
Published by: Erin Sullivan on Aug 02, 2011
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01/02/2013

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UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDAORLANDO DIVISION
MACKLE VINCENT SHELTON,Petitioner,v. Case No.: 6:07-cv-839-Orl-35-KRSSECRETARY, DEPARTMENT OFCORRECTIONS,
et. al.
,Respondents. _____________________________/
ORDER
 
THIS CAUSE
comes before the Court for consideration of Mackle VincentShelton’s Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Dkt. 1); theresponse 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 ofPetitioner. (Dkt. 28) On May 13, 2002, the Florida Legislature enacted changes toFlorida’s Drug Abuse Prevention and Control law, F
LA
.
 
S
TAT
. § 893.13, as amended byF
LA
.
 
S
TAT
. § 893.101. By this enactment, Florida became the only state in the nationexpressly 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 fordelivery 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,
1
Because Petitioner did not assert lack of knowledge of the illicit nature of a controlled substance as anaffirmative defense (See Fla. Stat. § 893.101(2)), the jury was instructed that it must convict Petitionerupon sufficient proof that Petitioner had, in fact, delivered cocaine. The applicable instruction required noother proof or finding. (See Dkt. 8 at B. 338)
Case 6:07-cv-00839-MSS-KRS Document 38 Filed 07/27/11 Page 1 of 43 PageID 315
 
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the Court
GRANTS
Petitioner’s request for habeas relief (Dkt. 1), and finds that F
LA
.
 
S
TAT
. § 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 unlawfulfor any person to sell, manufacture, or deliver,
3
 
or possess with intent tosell, manufacture, or deliver, a controlled substance. Any person whoviolates 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 thesecond degree, punishable as provided in s. 775.082, s. 775.083, ors. 775.084.
. . .
(6)(a) It is unlawful for any person to be in actual or constructivepossession of a controlled substance unless such controlled substancewas lawfully obtained from a practitioner or pursuant to a valid prescriptionor order of a practitioner while acting in the course of his professionalpractice or to be in actual or constructive possession of a controlledsubstance except as otherwise authorized by this chapter. Any personwho violates this provision commits a felony of the third degree,punishable as provided in s. 775.082, s. 775.083, or s. 775.084.F
LA
.
 
S
TAT
. § 893.13(1)(a),(6)(a) (2000).Addressing whether § 893.13 included guilty knowledge as an element of theoffense, the Florida Supreme Court opined:We believe it was the intent of the legislature to prohibit the knowingpossession of illicit items and to prevent persons from doing so byattaching a substantial criminal penalty to such conduct. Thus, we hold
2
Florida exempts itself from the age-old axiom: “The act does not make a person guilty unless the mindbe also guilty.”
3
 
“Deliver” or “delivery” is defined as “the actual, constructive, or attempted transfer from one person toanother of a controlled substance, whether or not there is an agency relationship.” F
LA
.
 
S
TAT
. § 893.02(6).
 
Case 6:07-cv-00839-MSS-KRS Document 38 Filed 07/27/11 Page 2 of 43 PageID 316
 
3
 
that the State was required to prove that Chicone knew of the illicit natureof the items in his possession.Chicone v. State, 684 So. 2d 736, 744 (Fla. 1996). Additionally, the Florida SupremeCourt 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. 2d166, 170-72 (Fla. 2002), the Florida Supreme Court made clear that “knowledge is anelement of the crime of possession of a controlled substance, a defendant is entitled toan instruction on that element, and . . . [i]t is error to fail to give an instruction even if thedefendant did not explicitly say he did not have knowledge of the illicit nature of thesubstance.”In direct and express response to the Court’s holdings in Chicone and Scott, inMay 2002, the Florida legislature enacted amendments to Florida’s Drug AbusePrevention 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 illicitnature of a controlled substance found in his or her actual or constructivepossession, were contrary to legislative intent.(2) The Legislature finds that knowledge of the illicit nature of a controlledsubstance is not an element of any offense under this chapter. Lack ofknowledge of the illicit nature of a controlled substance is an affirmativedefense to the offenses of this chapter.(3) In those instances in which a defendant asserts the affirmative defensedescribed in this section, the possession of a controlled substance,whether actual or constructive, shall give rise to a permissive presumptionthat the possessor knew of the illicit nature of the substance. It is the intentof the Legislature that, in those cases where such an affirmative defenseis raised, the jury shall be instructed on the permissive presumptionprovided in this subsection.F
LA
.
 
S
TAT
. § 893.101. As explained by one Florida court:
Case 6:07-cv-00839-MSS-KRS Document 38 Filed 07/27/11 Page 3 of 43 PageID 317

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