A state appeals court Wednesday rejected a Miami-Dade judge’s decision to declare Florida’s drug law unconstitutional and throw out 39 felony cases.
The Third District Court of Appeal said Circuit Judge Milton Hirsch’s “analysis and reasoning is flawed.” Hirsch threw out the cases based on a ruling issued by federal judge in Osceola County.
For legal observers, Wednesday’s decision did not come as a surprise because the same appeals court last November said it did not agree with U.S. Judge Mary Scriven’s ruling that the state’s drug law was “draconian” because prosecutors do not have to prove the accused actually knew of the illicit nature of the drugs they were carrying.
The 39 felony cases will now be reinstated.
Scriven’s ruling in July 2011in Shelton v. Department of Corrections had sparked thousands of requests statewide from defendants seeking their freedom.
The law was changed in 2002, when legislators removed the burden from authorities to prove that a defendant had “knowledge” of the illicit nature of the drugs, although the accused could raise that defense at trial.
In Miami-Dade, about 60 judges had rejected efforts to dismiss charges based on Scriven’s ruling, according to Assistant State Attorney Christine Zahralban, who handled litigation of the cases here.
Just one judge, Hirsch, agreed with Scriven, tossing out the scores of drug cases in rulings that have been hailed by defense lawyers but derided by police and prosecutors.
a former defense attorney elected to the bench in November 2010 ,
said in his opinion that the law cast too wide a net.
“Each of us engages in delivery when we hand a colleague a pen, a friend a cup of coffee, a stranger the parcel she just dropped,” Hirsch wrote. “What distinguishes innocent possession and innocent delivery from guilty possession and guilty delivery is not merely that we possess, not merely what we deliver, but what we intend
But in Wednesday’s opinion, Judge Leslie Rothenberg said Hirsch “incorrectly” relied on the federal rulings, and noted Hirsch penned a “lengthy order attempting to justify its decision to ignore” the previous Florida Supreme Court decisions ruling on the issue.
Miami-Dade Police Maj. Charles Nanney, who heads the department’s narcotics unit, hailed the ruling.
“It’s a victory for us,” Nanney said. “We’re going to continue doing what we’re doing in trying to make the neighborhood safer.”