Petitioner’s request for habeas relief (Dkt. 1), and finds that F
. § 893.13 is unconstitutional on its face.
I. BACKGROUNDA. Florida’s Legislative Scheme
“Actus non facit reum nisi mens sit rea”
- - except in Florida.
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,
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
. § 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
Florida exempts itself from the age-old axiom: “The act does not make a person guilty unless the mindbe also guilty.”
“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
. § 893.02(6).
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