Florida Criminal Defense Lawyer Blog

In a groundbreaking decision made yesterday, Judge Mary S. Scriven of Florida’s
Middle District declared part of an important Florida drug law unconstitutional. In a
43-page order that holds vast implications for the world of Miami criminal defense,
Judge Scriven threw out the cocaine-delivery charge brought against defendant Mackle
Shelton in a 2005 trial. Six years ago, Shelton received an 18 prison sentence for his
work as a cocaine delivery man. Shelton remains convicted of the seven other related
charges brought against him during the trial.

Scriven found the Florida law that Shelton was charged with breaking is unconstitutional
because it eliminated the need for a jury to establish the presence of mens rea, or “a
guilty mind”, in the defendant. This decision marks an important advance for the
cause of justice in the Florida criminal system. For years, the best efforts of Florida’s
criminal defense attorneys were too often unable to protect those individuals facing
such a charge. Scriven also took aim at certain changes made to the Drug Abuse
Prevention and Control law by the Florida state legislature in 2002, declaring them
unconstitutional on the same grounds.

The law in question specifically denies the right of anyone to “sell, manufacture, or
deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance”
However, Judge Scriven writes that during the 2005 trial the jury was not instructed to
determine whether Mr. Shelton was conscious of the nature of his deliveries. The best
Miami criminal defense lawyers have always seen a problem with the law that allows
such a clearly erroneous practice. As Judge Scriven wrote, “Not surprisingly, Florida
stands alone in its express elimination of mens rea as an element of a drug offense.”
With luck, Judge Scriven’s order will have a lasting positive impact on the ability of
Miami’s criminal attorneys to fight for their clients’ rights.

Criminal defense lawyers in Florida will welcome the logic of Judge Scriven’s order.
She writes that “there is a long tradition throughout human existence of lawful delivery
and transfer of containers that might contain substances,” but “Under Florida's statute,
that conduct is rendered immediately criminal if it turns out that the substance is a
controlled substance, without regard to the deliverer's knowledge or intent.” This news
opens the doors for effective and competent Florida defense lawyers to provide their
clients with an additional opportunity for protection from harsh drug laws.

Judge Scriven’s order calls attention to the weaker points of Florida’s drugs laws that
have plagued Miami criminal defense attorneys, for years. She writes that there are
an infinite amount of possible scenarios in which one might legitimately not know they
are in possession of illegal drugs. Scriven specifically challenges the age-old argument
that the “possession of cocaine is never legal”, saying that it is inherently flawed.
Scriven cites rulings from several United States Supreme Court cases in her court order
and also points to the fact that there has not yet been an appellate case challenging
the law. Judge Scriven’s court order is a laudable effort toward increasing the justice of
the Florida legal system, and gives criminal defense lawyers a better ability to defend
their clients.

In what appears to be a message specifically directed to prosecutors, Judge Scriven
writes that the traditional “tough luck” approach to such cases is not an acceptable
answer to the constitutionality of the law. Miami criminal defense lawyers, indeed
defense lawyers all over Florida, should welcome this news as an advance in
defendants’’ rights.

Judge Scriven sums up her assessment of the Florida drug law by writing, “the Florida
drug statute fails completely.” Defense lawyers all over Florida, particularly those
Miami criminal defense attorneys who see such a high proportion of drug offense
related cases, surely cannot help but to agree with Judge Scriven’s assessment of
Florida drug laws.

Earlier this week, an 18-year-old resident of Viera, Florida was charged with growing cannabis plants at two separate locations in Viera and Suntree. Justin Michael Callari, the accused teenager, was arrested on the 15th of last month but not presented with formal charges until recently. Occasions such as this catch the attention of experienced criminal defense lawyers because we understand how important it is for young adult offenders to secure the services of a qualified advocate. The punishment for drug crimes of this nature may often be unbelievably harsh and can ruin the rest of a young person’s life.

In mid-June, twenty-five cannabis plants were found by an agent of the Brevard County Sherriff’s Office in a wooded area behind a 3,800 square foot home on Cape Sable Drive near Suntree. The owner of the house directed the agent to Callari as the owner of the plants. In his report from June 15th, Agent Adam Steuerwald wrote that during an interview at his apartment Callari, “admitted to growing 11 plants behind the house and also admitted to an additional five plants at his residence”.

The fact that a confession was obtained during an interview at Callari’s home implies that no criminal defense attorney was present. Callari was subsequently arrested and charged with the possession of thirty plants, a third-degree felony which could carry a sentence of up to five years in prison. One wonders how this investigation would have played out had the defendant waited until he had secured the services of a Florida criminal defense lawyer before talking to the police.

Callari, who has received two tickets for trespassing in the last two years but has no criminal record, was able to post the $5,000 bail and awaits a hearing of early resolution on the 23rd of August. The early resolution program is designed for first time offenders and those with non-violent records and Callari is expected to appear with his defense attorney. It often allows for cases to be settled without a trial, and as an experienced Miami criminal defense attorney I recognize the big difference that the services of a qualified advocate can make during these hearings.

Lt. Alex Herrera, a spokesman for the sheriff’s office, said of outdoor grow operations, “We've had several throughout the years, some large and small. It's kind of hit or miss.” He said that this case, in which the plants were found by wild hog trappers, is similar to most finds where discovery of the operation is generally accidental. Years of service as a Miami criminal defense attorney have let me see the difference that a proper defense can make in a case such as this, where a cannabis offense can mean serious time in prison.