DRUG LAW CASE ON FAST TRACK IN FLA. SUPREME COURT

TALLAHASSEE - A case that could result in the release of hundreds, if
not thousands, of drug offenders is on a fast track in the Florida
Supreme Court.

The state's appeal of a Manatee County judge's decision on Sept. 14
that struck down Florida's drug law regarding "guilty knowledge" of
illegal drugs is running parallel with, but quicker, than a similar
federal case.

Just two weeks after the Manatee ruling, a three-judge state appellate
panel sent the Manatee case to the justices without a decision so it
could get to Florida's highest court as quickly as possible.

The Lakeland-based 2nd District Court of Appeal certified the case as
an issue of "great public importance," noting it will undoubtedly be
raised by defense lawyers in every felony court in Florida. The
Supreme Court also responded swiftly by setting oral argument for Dec. 6.

Last week, though, the 3rd District Court of Appeal in Miami upheld
the drug law's constitutionality in a separate case.

"Until this important constitutional question is resolved by the
Supreme Court, prosecutions for drug offenses will be subject to great
uncertainty throughout Florida," the 2nd District panel wrote in its
unsigned unanimous order.

Circuit Judge Scott Brownell dismissed charges against 42 Manatee
County defendants in 46 separate criminal proceedings. The appellate
court noted many more motions to dismiss are pending and that none can
be resolved until the Supreme Court rules.

"Finally, if the ruling in this order is ultimately affirmed by the
Supreme Court, it is possible that hundreds or even thousands of
inmates will be eligible for immediate release," the panel wrote.

Brownell ruled that the 2002 drug law violates constitutional due
process requirements because it eliminated a previous requirement for
prosecutors to prove defendants had a "guilty knowledge" that a
substance they had sold, manufactured, delivered or possessed was illegal.

Florida is the only state that doesn't have doesn't have a guilty
knowledge, or "mens rea," provision in its drug laws.

Brownell's ruling was based largely on a July decision in Orlando by
U.S. District Judge Mary Scriven who also found the law unconstitutional.

"Other states have rejected such a draconian and unreasonable
construction of the law," Scriven wrote.

She ruled in the case of Mackle Shelton, 33, who was convicted in
Osceola County on charges of selling, manufacturing or delivering
crack cocaine and fleeing a law enforcement officer. He was sentenced
to 18 years in prison on the drug charge and 5 years for the fleeing
conviction. Police shot Shelton in the shoulder when he tried to get
away in a vehicle as they tried to arrest him on a warrant.

Florida Attorney General Pam Bondi has appealed both rulings.

Bondi's office contends, in papers filed with the state Supreme Court
and 11th U.S. District Court of Appeal in Atlanta, that the law is
valid because defendants still can assert an affirmative defense they
didn't have guilty knowledge.

That's not enough to overcome the law's criminalization of "inherently
innocent conduct," failure to provide constitutionally required notice
and severe penalties of up to life in prison, according to a response
by Public Defender James Moorman of Bartow that was filed with the
Supreme Court.

Bondi also argues in the federal case that Scriven's decision violated
the Antiterrorism and Effective Death Penalty Act of 1996.

That law says federal courts cannot order prisoners released from
state custody unless an imprisonment was contrary to or involved an
unreasonable application of established federal law as determined by
the U.S. Supreme Court, which has never ruled in such a case,
according to Bondi's brief.

In a friend of the court brief filed with the state Supreme Court, the
Florida Prosecuting Attorneys Association argues that Scriven's ruling
cannot be binding on state courts unless it's affirmed by the U.S.
Supreme Court.

In Miami, Circuit Judge Milton Hirsh had tossed out several drug cases
based on Scriven's ruling. The 3rd District Court of Appeal noted it
rejected Hirsh's decision although it's ruling affirming the law came
in a case appealed from another Miami judge.