|Lawyers seeking to dismiss 33 drug cases|
|The Press - News|
|Written by The Press|
|Thursday, 01 September 2011 09:23|
Both public and private defense attorneys have filed motions to dismiss pending drug sale and possession cases in Baker County, citing a July 27 ruling by a federal judge in Orlando.
The 33 motions are similar to hundreds filed throughout Florida after Judge Mary Scriven declared the state law that does not require proof that defendants knew they were in possession of illegal substances is “draconian.”
The judge argues Florida’s sale and possession statute passed in 2002 does not provide for cases where defendants could be arrested for having drugs they either were unaware they had, or believed them to be legal.
Since then, the Third District Court of Appeals in Tallahassee, which rules on cases in Baker County and the Gainesville-based Eighth Circuit, declared the federal ruling in an Osceola County case does not apply and the current statute stands unless overturned by the US Supreme Court.
Judges across the state at the circuit level have likewise dismissed motions on the same basis.A hearing on the 33 Baker County cases will be held in front of Circuit Judge Phyllis Rosier on September 6.
“In every drug case everywhere (in Florida), they’re filing motions,” observed State Attorney Bill Cervone in Gainesville. “Many of the motions have been summarily dismissed, and I believe the hearing in Baker County will be the first one in the Eighth Circuit.”
He described the appeals court decision in Tallahassee as “a real problem for defense attorneys.”
“The First DCA rejected this claim. It’s controlling case law for us. Lower federal courts do not have controlling authority over Florida courts,” added Mr. Cervone.
The local motions to dismiss, as do others throughout the state, argue that Florida’s lack of a mens rea (Latin for “guilty mind”) requirement in drug cases renders the statute unconstitutional.
The Baker County cases are essentially defendants charged with sale and possession of drugs on the basis of controlled buys from confidential informants.
Defense attorneys also argue that removal of the mens rea requirement by the 2002 statute violates due process because other states must prove defendants knew substances were illegal and sold them as such.
|Last Updated on Thursday, 01 September 2011 14:39|