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Federal Ruling on Florida Sentencing Laws

Posted by on September 2, 2011

Are Florida’s drug laws unconstitutional?

On July 27, in Shelton v. Department of Corrections, federal judge Mary Scriven held Florida’s state drug law unconstitutional because it lacked a requirement that the state prove a defendant knew he or she was engaged in illegal activity to obtain a conviction. In a nutshell, the ruling says that Florida cannot constitutionally punish someone for violating drug laws without requiring that the state prove the defendant knew he or she was violating those laws.

Many FAMM members have asked us what this ruling means. Unfortunately, the short answer is: no one knows yet. Based on the questions I’ve received, three issues seem to be among the most important. Before we get to those, let me offer some background on the Shelton case.

In 1996, the Florida Supreme Court ruled in Chicone v. State that when it wrote Florida’s drug statute, the legislature intended to include a “mens rea” (intent) requirement, even though the law itself contained no such provision. In other words, the Court held that in drug cases, the state must prove that a defendant knew that a substance was illegal before he or she could be convicted of possessing or distributing illegal drugs. It ruled the same way in State v. Scott in 2002.

After the Scott decision, the Florida legislature passed what would become Florida Statute 893.101, which was designed to overturn Chicone and Scott, and remove any intent requirement from Florida’s drug laws.

Specifically, F.S. 893.101 says (in relevant part):

(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 illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.

(2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter. . . .

So, what does it mean?
The federal Shelton ruling has thrown drug cases based on violations of chapter 893 – from possession to distribution to trafficking – into question all over the state.  Based on questions received from FAMM members, three issues seem to be among the most important.

1. How will the ruling affect pending drug cases?
Because the ruling came from a federal court, the degree to which it will impact state drug cases is simply unknown at the moment. Florida’s rule is that if a Florida District Court of Appeal (DCA) has decided a case that directly addresses the same issue as the federal ruling, then the state court ruling (and NOT Shelton) will control in a given case, and several DCA opinions have upheld the constitutionality of Florida’s drug laws.

That said, whether those opinions address the same issue as Shelton is entirely up to the judge in any given case, which means there is simply no way to determine in advance what impact the ruling will have on drug cases going forward. Right now, attorneys all over the state are filing motions to dismiss pending drug cases, and it’s too early to determine how courts will react.

2. Will Shelton affect drug trafficking cases?
Florida Statute 893.135 defines trafficking, which was not directly at issue in Shelton, as: “Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession . . .” various amounts of illegal drugs is guilty of drug trafficking under the statute.


The word “knowingly” is relevant, because Shelton held that the state may not charge a citizen with a drug offense without proving the offender “knew” he or she was engaged in illegal activity (i.e., that the defendant was aware that what he or she possessed was illegal), and “knowingly” in F.S. 893.135 seems to cover that requirement. However, F.S. 893.101, which removed the intent requirement for drug offenses, applied to “any offense under this chapter,” which ostensibly includes trafficking (itself an “offense” under the “chapter”). So Shelton could be read to either include or exclude trafficking cases; again, the answer depends largely on the judge in the case, and we just don’t yet know how courts will treat the issue.


3. Will this ruling affect those already convicted of drug offenses?
Unfortunately, that is not clear, either. What we do know is that Shelton is not automatically retroactive, and that general retroactive application of Shelton’s holding will have to come in the form of an opinion from either the Florida or United States Supreme Court. The (admittedly somewhat dissatisfying) answer on retroactivity after Shelton is that some people incarcerated for drug offenses will likely be able to petition for re-sentencing under Florida Rule of Criminal Procedure 3.850, and others will not.


Stay tuned for more information
In the end, as Jim Felman, the lead attorney who worked on the Shelton case, told me, the issues after the ruling are “as clear as mud.” If you’re unsure of what the ruling means for you or your loved one, we recommend contacting your attorney to discuss the issues further.

Of course, if you have any questions about FAMM, please feel free to call me at (352) 682-2542, or email me at


Thanks for your support!



Greg Newburn

Director, Florida Project

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