Judge Milton Hirsch finds Florida drug law unconstitutional

Milt Hirsch wrote a compelling (and very entertaining) order finding Florida's drug statute unconstitutional, following the decision in Shelton. The whole order is worth a read. Here is the intro and conclusion, and a link to the whole order at the bottom:

"[F]or there is nothing either good or bad, but thinking makes it so."

--William Shakespeare, The Tragedy of Hamlet, Prince of Denmark, Act II sc. 2


I. Introduction

The 39 defendants captioned above are similarly circumstanced in that all are charged with violation of Fla. Stat. § 893.13. In light of the recent decision in Shelton v. Department of Corrections, No. 6:07-cv-839-Orl-35-KRS, 2011 WL 3236040 (M.D. Fla. July 27, 2011), finding '893.13 unconstitutional, all defendants move for dismissal. I have consolidated these cases for purposes of these motions only.

Shelton has produced a category-five hurricane in the Florida criminal practice community. A storm-surge of pretrial motions (such as those at bar) must surely follow. It is, therefore, essential that I adjudicate the present motions promptly. This order has been written in great haste and under great time pressure. As Mark Twain is alleged to have said: "If I'd had more time, I could have written you a shorter letter."

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V. Conclusion

The immediate effect of the present order is the dismissal of charges against all movants – the overwhelming majority of whom may have known perfectly well that their acts of possession or delivery were contrary to law. Viewed in that light, these movants are unworthy, utterly unworthy, of this windfall exoneration. But as no less a constitutional scholar than Justice Felix Frankfurter observed, "It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end." Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).

Like the court in Shelton, I find that Florida Statute § 893.13 is facially violative of the Due Process Clause of the 14th Amendment to the United States Constitution; and, accordingly, that any prosecution brought pursuant to that statute is subject to dismissal.

In the comments the other day, there was a discussion about whether Shelton was binding. Judge Hirsch has a lot to say about that, including this conclusion:

In the absence of such particularization I am obliged as a Florida trial court to presume that Florida appellate courts relied upon a Florida-law-based guarantee of due process, whether constitutional or common-law. No Florida case has decided the issue presently before me: whether '893.13 is unconstitutional by operation of the 14th Amendment to the federal Constitution. The Shelton court reached the same conclusion: A[N]o Florida appellate [court] ... has addressed the constitutionality of ['893.13] under the federal Constitution,@ Shelton, 2011 WL 3236040, at *12; and the Florida cases that appear to give passing consideration to the issue of the constitutionality or not of the statute Acontain no analysis of or citation to the tripartite constitutional analysis@ required by Staples and other U.S. Supreme Court authorities, and employed in Shelton. Id. See also supra note 3. Accordingly, I am bound to follow Shelton=s holding that '893.13 violates the 14th Amendment=s due process guarantee.

Hirsch Order