Floridians have been waiting for a definitive answer from the State Supreme Court on whether Florida’s Drug Statute, Sec. 893.13 is constitutional. On Thursday they determined it passes constitutional muster. The full opinion is attached.
A circuit court judge in Palm Beach Florida, unlike Miami-Dade Judge Milton Hirsch, upheld the constitutionality of Florida’s drug statute. In a 16-page opinion, Judge Kastrenakes blasted U.S. District Judge Mary Scriven and Circuit Judge Hirsch arguing they disregarded a plethora of appeals court decisions to reach their erroneous conclusion that the law is unconstitutional because prosecutors don’t have to prove that a person knew he possessed illegal drugs to get a conviction. Mere possession is enough, the judge wrote. Their rulings, he claimed were “fatally-flawed” and “just plain inaccurate.”
Judges in Hillsborough and Pinellas Counties have thus far denied all motions to dismiss 893.13 charges. Appeals have been taken from Judge Scriven’s ruling as well as in South Florida. This issue will have to end up before the Supreme Court to decide.
With the increase in prescription drug-related deaths in Florida, Governor Rick Scott established the Drug Enforcement Strike Force to crackdown on Florida’s pill mill crisis. Yesterday, Attorney General Pam Bondi issued a statement with the results.
She stated that because of the collaborative efforts with the Drug Enforcement Strike Force, an immense amount of prescription drugs are no longer being dispensed illegally.
According to The Attorney General’s news release, the efforts include:
- – Raising awareness on prescription drug abuse
– Partnering with government officials to combat pill mills and prescription drug abuse (stricter administrative and criminal penalties)
– Prosecute prescription drug-related cases through the Office of Statewide Prosecution when illegal activity spans multiple jurisdictions.
“The fact that prescription drug-related deaths have increased since 2009 is crushing, and with our continued efforts I am confident that these reports will reflect positive changes in the future…” Attorney General Pam Bondi says.
The fight against prescription drug abuse has already resulted in hundreds of arrests, the seizure of thousands of pharmaceutical pills and an increased caseload for many Florida criminal law attorneys.
Announced today, the Governor and Cabinet will recognize August 27 as “Prescription Drug Take-Back Day” giving citizens the opportunity to safely get rid of prescription drugs.
Mary S. Scriven, United States District Judge for the Middle District of Florida, Orlando Division, held Florida Statute 893.13, Florida’s drug statute, unconstitutional in an order filed on July 27, 2011. In accord with Rule 57 of the Federal Rules of Civil Procedure, a Declaratory Judgment shall be entered separately, declaring Florida Statute, 893.13 unconstitutional. In her 43 page order, Judge Scriven granted Petitioner, Mackle Vincent Shelton’s Petition for Writ of Habeas Corpus under 28 U.S.C. Section 2255.
Click for the full text of the opinion.
Overview: In 2010, Congress passed the Fair Sentencing Act (FSA) which increased the amounts of crack cocaine that triggered the mandatory minimum sentences for federal crack cocaine crimes. The effect was to lower crack cocaine sentences. The FSA also narrowed the ratio between the powder and crack cocaine offenses from 100:1 to 18:1. Under the old law, a five (5) year mandatory minimum sentence was in place for possessing with the intent to distribute 5 grams of crack or 500 grams of powder cocaine. Under the new law, 28 grams of crack and 500 grams of cocaine triggers the five (5) year minimum mandatory sentence.
Q. Will the 2011 crack cocaine guideline amendment be retroactive?
A. Yes. On June 30th, the Commission voted unanimously to make the amendment retroactive. This means approximately 12,040 federal crack offenders sentenced under the sentencing guidelines (U.S.S.G.) before November 1, 2010, may be eligible for sentence reductions.
Q. When does the retroactive crack amendment go into effect?
A. November 1, 2011
Q. How can federal prisoners serving time for crack cocaine offenses benefit from the amendment?
A. No one gets a sentence reduction automatically. A motion under 18 U.S.C. 3582©(2) must be filed in the court that sentenced the prisoner. The court will likely give the prosecutor the opportunity to oppose the reduction. The court can give all, part or none of the requested sentence reduction. There is no guarantee that any prisoner will receive a sentence reduction.
Q. Who is eligible to seek a sentence reduction based on the retroactive crack guidelines:
A. Prisoners are eligible to seek a sentence reduction if they:
- were convicted in federal court – it will not benefit people convicted in state court for state violations of crack offenses
- were convicted of a crime involving crack cocaine – it will not benefit people convicted of crimes involving other types of drugs
- were sentenced before November 1, 2010
- are serving a guideline sentence for crack cocaine – it will not benefit those serving a mandatory minimum sentence of five or ten years without any additional time under the sentencing guidelines.
- are not on supervised release
- are not in a federal halfway house – if you are already in a half-way house, you are likely to be released before the retroactive amendment goes into effect.
Q. Are career offenders eligible for sentence reductions?
A. Most likely no. Career offender sentences depend largely on the charge the person faced and the statutory maximum penalty that charge carries. A separate guideline section USSG 4B1.1 controls career offender sentences and was not reduced by this amendment.
Federal prisoners convicted for crack offenses and sentenced prior to November 1, 2010 should contact a federal criminal defense attorneyin the district where they were sentenced to see legal representation to determine if they are eligible to see relief under this retroactive crack guideline amendment.
We’ve all seen it in the movies; “cop” bangs on door, people inside scatter and hide weapons/drugs, someone answers the door and “cops” search the home. Pretty standard right? This is not what happened in a recent case in Kentucky…
According to an article from the Orlando Sentinel, Kentucky police were following a man who they believed to be a drug dealer. The man went into an apartment building but the law enforcement officials lost track of which unit he entered. The police smelled marijuana coming from one door and knocked on it. They heard rummaging and announced they were coming in. They did not find the drug dealer but instead found Hollis King with marijuana and cocaine. King convicted of drug trafficking but later his conviction was overturned by the Kentucky Supreme Court accusing the officers of violating his 4th Amendment (unreasonable search and seizure). The U.S Supreme Court then heard an appeal from prosecutors and reversed the ruling. Justice Samuel A. Alito Jr said
“…the police conduct in this case ‘was entirely lawful,’ and they were justified in breaking down the door to prevent the destruction of the evidence.”
The Supreme Court passed a ruling allowing law enforcement to enter homes without a search warrant. If law officers knock loudly on the door and hear suspicious noises coming from inside, they can enter the home without a warrant or consent. Before this ruling, the law stood that officials could only enter the home without a search warrant if they had consent from the owner or if there was an emergency situation.
In the article, Justice Ruth Bader Ginsburg argues
“the court’s approach arms the police with a way routinely to dishonor the 4th Amendment’s warrant requirement in drug cases. She said the police did not face a ‘genuine emergency’ and should not have been allowed to enter the apartment without a warrant.”
This new law could potentially complicate the job of criminal defense lawyers because in the past, there was a logical defense when police didn’t have the explicit right to enter the home of the suspect. Now, we may come across the gray area of what was thought to have been heard and what the accused says happened. The line of violating the 4th Amendment could become blurred.
The Supreme Court arrived at an 8-1 decision allowing law enforcement officials to enter without a warrant if they are in pursuit of someone with drugs, knock loudly and can hear the destruction of evidence.
Drug offenses are both Federal and State statutes. If you have left Florida or your state of residence and get charged with possession, you could be charged with a US Federal statute.
In the drug offense video below, Tampa Criminal Defense Lawyer Lori D. Palmieri states that the most recent, serious drug related crime is the possession of controlled substances.
“As we sit here in 2011, the primary focus of law enforcement is the distribution and possession of controlled substances that are prescription drugs.”
But that is obviously not the only type of drug that constitutes for a drug offense. Any type of drug from crack-cocaine to marijuana will land you a drug charge.
Penalties for drug offenses will be determined by any of the following factors:
- – Quantity of the drug?
- – Was it simple possession?
- – Was it possession with intent to sell, distribute, and/or deliver?
- – Were there weapons involved?
Drug cases are very fact specific. If evidence is wrongfully obtained or there were problems with the search and seizure, the possibility to move the court in motion of suppress is there. Generally, the case will go away.
A conviction of any drug offense can result in the loss of your Florida drivers license and the length of suspension depends on the specific factors of the crime. A qualified attorney will know what can be done to avoid or minimize the loss of a license.
As you may know, criminal defense lawyers are faced with the particularly difficult challenge of defending clients who are accused ofdrug charges because both State and Federal statutes call for minimum mandatory penalties, based on the circumstances of each particular case (for example, the quantity of drugs, the presence of weapons, etc.).
New proposed legislation, arguably being driven by the ailing economy and the rising cost of Florida’s criminal justice system, seeks to end minimum mandatory penalties, allowing judges more latitude to decide penalties based on the individual circumstances of each case. In a March 10, 2011 article by News Service Florida, Sen. Ellyn Bogdanoff draws the distinction between drug offenders who suffer from a “life of crime” versus those that are plagued by a “life of addiction”, arguing that those suffering from addiction can be helped so that they are transformed into law-abiding, taxpaying citizens.
The US Senate Thursday (March 11, 2010) voted to reduce the cocaine-crack ratio from it’s current 100:1 to 20:1. Under the old ratio, 5g of crack would be equivalent to 500g of cocaine (half a kilo) for sentencing purposes, resulting in a 5 year minimum mandatory sentence. The new ratio guideline would score 5g of crack as only 100g of cocaine.