Judge denies motion to dismiss drug charges

PANAMA CITY — While acknowledging Florida’s drug laws put defendants at a disadvantage, a Circuit Court judge has ruled against attorneys who argued charges against their clients should be dismissed because the laws violate the U.S. Constitution.

Circuit Court Judge James Fensom on Wednesday denied a motion to dismiss drug trafficking charges against Michael Norman and Daniel Nelson. Their attorneys, Richard Albritton III and Gerard Virga, respectively, filed a joint motion to dismiss the drug trafficking charges stemming from their arrest after the Southport home where the men lived was the site of an armed robbery attempt that left two men dead.

Fensom’s two-page written decision indicates he had concerns about the law but felt bound to abide by decisions of Florida’s First District Court of Appeal, which has upheld the law on at least three occasions.

“After reviewing the thoroughly researched arguments of both parties, the court finds the defendant’s motion must be denied,” Fensom wrote. “The court recognizes the Legislature’s removal of the [intent] element in [The Drug Abuse Prevention and Control Act] may create a strict liability scheme; however, the court is bound by rulings from the First District.”

In response to a 2002 Florida Supreme Court decision overturning a drug conviction, the Legislature rewrote the state’s drug laws with the expressed intent of including people who didn’t intend to possess drugs, or even know they possessed drugs.

Only in Florida courts can a prosecutor successfully convict a defendant in a drug case without proof of their intent. Every other court in America requires proof of intent to commit a crime.

Florida jurors can be instructed that they are “permitted to presume” the defendant was aware he was violating the law if they possessed drugs, but if there’s reasonable doubt the defendant knew the drugs were illegal, the jury may acquit.

“Such a presumption may be prohibited … as it could be argued that the Legislature has declared an individual presumptively guilty, and thus ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ ” Fensom wrote, quoting a 1958 U.S. Supreme Court decision.

The Drug Abuse Prevention Act has been challenged recently by a federal judge in Orlando, who overturned a drug case conviction and declared the law was unconstitutional and “draconian” because it imposed mandatory sentences without requiring evidence of intent.

A circuit judge in Miami threw out 39 drug cases based on the Orlando decision. While the judge allowed that many of the defendants whose cases were dismissed likely were guilty, he said the law was too broad because it could lead to the conviction of innocent defendants.

Albritton and Virga declined to comment but issued a statement thanking Fensom for his careful consideration of the issue. They respectfully disagree with the decision and they believe either the Florida Supreme Court or the U.S. Supreme Court ultimately will find the law is unconstitutional.

“We are currently exploring the most expeditious means of getting the matter before one or more of those courts,” the statement said.