In STATE v. ADKINS, No. 2D11-4559 (Fla. 2d DCA Sep. 28, 2011), the DCA certified to the Florida Supreme Court the question posed in SHELTON V. SECRETARY OF DEP'T. OF CORRECTIONS, No. 6:07-cv-839 (M.D. Fla. Jul. 27, 2011). On a petition for writ of habeas corpus, the Federal District Court in SHELTON held that § 893.13 Florida Statutes (2002), as amended by § 893.101, is unconstitutional to the extent that § 893.101 expressly provides that knowledge of the illicit nature of a controlled substance is not an element of any offense under chapter 893. The court reasoned that § 893.13 violates due process because (a) the penalties imposed thereby greatly exceed the penalties allowed for strict liability offenses, (b) a felony conviction thereunder gravely besmirches an individual's reputation, and (c) the statute regulates inherently innocent conduct.
In SHELTON the Federal District Court rejected the argument that § 893.13 does not create a strict liability crime because the defendant may raise lack of knowledge as an affirmative defense for two reasons: (1) Even if knowledge could be properly relegated to an affirmative defense for such an onerous felony as drug distribution, it does not change the character of the statute from a strict liability statute. Whether a statute is viewed as one of strict liability is determined by reference to its elements not available affirmative defenses. (2) By the plain import of the statute, the defendant bears the burden of raising and proving the affirmative defense of knowledge, and the State enjoys a presumption against the proof that a Defendant might proffer. However the State cannot shift the burden of proof to a Defendant on an essential element of an offense.
In ADKINS the DCA recognized that Florida circuit courts are split regarding the impact of SHELTON. In STATE v. BARNETT et al, No. 11-CF-3124 (Fla. 13th Cir. Ct. Aug. 12, 2011) the circuit court in Hillsborough County refused to follow Shelton, reasoning that "the actual practice in Florida courts does include a general intent scienter requirement"; see also STATE V. ANDERSON, No. F99-12435(A) (Fla. 11th Cir. Ct. Aug. 11, 2011). However in STATE v. WASHINGTON et al, No. F11-11019 (Fla. 11th Cir. Ct. Aug. 17, 2011), the circuit court in Miami did follow SHELTON, reasoning that a absent a mens rea requirement, the Florida statute is facially violative of the Due Process Clause of the 14th Amendment to the United States Constitution. In STATE v. ADKINS et al, No. 2011-CF-2001 (Fla. 12th Cir. Ct. Sep. 15, 2011), the circuit court in Manatee County agreed that failure to include a mens rea requirement in the Florida statute results in facial violation of the Due Process Clause of the 14th Amendment.
Therefore in ADKINS the DCA certified conflict to the Florida Supreme Court without offering its own opinion, asserting that the conflicting opinions "presents issues that require immediate resolution by the supreme court because the issues are of great public importance and will have a great effect on the proper administration of justice throughout the state."
In PARKER v. STATE, No. 2D09-3230 (Fla. 2d DCA Sep. 28, 2011), the Defendant had "taught Sunday school. Over the years, he photographed many children. They posed innocently enough, much as in the style one would expect of a school photo, a yearbook, or a family scene. The innocence turned perverse. [The Defendant] cut the children's heads from some of his photographs and pasted them to photographs of bodies of nude or partially nude adult women. Some depicted the bodies of adult women engaged in sexual activity." Slip opinion at 2. The DCA called such conduct "loathsome". Slip opinion at 2. However the DCA held that it is not child pornography within the meaning of § 827.071(5) Florida Statutes (2007), which prohibits knowing possession of a depiction of "sexual conduct by a child", including such "actual or simulated" conduct. The DCA reasoned that "whether the conduct is 'actual' or... 'simulated,' the conduct is that of an adult. The crudely constructed depictions, fortunately, leave no doubt that no child engaged in the sexual conduct. Accordingly, we cannot conclude that [the Defendant] possessed child pornography. The legislature's words constrain us." Slip opinion at 4.
In MATZKE v. STATE, No. 2D09-1763 (Fla. 2d DCA Sep. 28, 2011), the trial court revoked the Defendant's probation after a hearing, finding that there was sufficient evidence to demonstrate a violation. But neither the trial court's oral pronouncement nor its written order identified which violations it found the Defendant to have committed. The DCA held that the order was insufficient and reversed of entry of a corrected order. "A trial court must identify the specific conditions which it finds a defendant has violated." Slip opinion at 2.
In BUSH v. STATE, No. 1D11-3203 (Fla. 1st DCA Sep. 27, 2011), the Defendant petitioned for a writ of habeas corpus to contest an order for pretrial detention. The DCA held that under Fla. R. Crim. P. 3.131(d)(2), the state may seek modification of bail or the conditions of release set by an order entered at the first appearance hearing only by showing that there is good cause for the modification. To satisfy the "good cause" requirement in this rule, the state must present evidence of a change in circumstances or new information. Evidence that was available to the state at the time of the first appearance hearing does not qualify as new information and therefore does not justify a subsequent denial of bail or a subsequent increase in the amount of bail. Although Fla. R. Crim. 3.132(b) allows the state to move for pretrial detention at any time, the provisions of rules 3.132(b) and 3.131(d) must be read together. The state cannot rely on favorable language in one rule to avoid the effect of the other. Therefore where a judge has granted a bail bond at first appearance, and the state then moves for pretrial detention before another judge without evidence of changed circumstances or new information, the second judge cannot change the original judge's ruling.
