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Miami-Dade Judge Rules Florida's Drug Law As Illegal

MIAMI - (CBSMiami.com) - A Miami-Dade circuit court judge ruled Wednesday that Florida's drug possession charge was illegal and agreed to dismiss the possession charges against 39 people.

Don't expect a mass exodus from jails just yet. The judge stayed his order for a week to give the state time to appeal to the Third District Court of Appeals.

After Judge Milton Hirsch's ruling was made public, Miami-Dade Major Charles Nanney of the Narcotics Bureau said it was a setback and would send the wrong message.

"This will encourage drug use. It's the gateway to other crimes," Nanney said adding that the judge was practicing "judicial activism."

"It's gonna have a chilling effect on crime," Nanney said. "Almost every person shot on the street in drive-by shootings is drug related so you're sending a message to citizens of Dade County, 'Let's get more drugs.' "

Defense attorneys disagree. Jonathan Jordan, who is representing 15 people who have drug possession charges, said it's a victory for the civil liberties of all Floridians.

"It's not okay to do drugs, that's not the message that the judges are trying to send they just want people to have their constitutional rights protected," Jordan said. "Somebody in the State of Florida could be convicted if they have drugs in their backpack in their car their friend put there without them even knowing that it's there. Florida is the only state where they could convict somebody."

To read Hirsch's ruling, click here:  State_v_Washington_Et _Al_Order_on_Motions_to_Dismiss_Hirsch

However, not all judges in Miami-Dade's criminal courthouse agree with Hirsch's ruling. Judge Jorge Cueto has not dismissed drug possession charges in his courtroom, even as defense attorneys have made similar arguments on behalf of their clients.

Those arguments stem from federal court ruling on July 27th.

The ruling, by U.S. Judge Mary S. Scriven, struck down the state's drug laws based on a 2002 change to the drug statutes. In 2002, the state legislature eliminated the "mens rea," or "guilty mind" requirement as a part of a drug offense.

Scriven laid out a scenario that said if a student hid his cocaine in his friend's backpack without telling him, then the owner of the backpack is guilty even if he didn't know it was there. Scriven said the 2002 Florida law is "repugnant to the common law."

Rory Stein, general counsel for the Miami-Dade Public Defender's office, said his office is still trying to sort out what this will mean for the thousands of clients his office represents.

"At some point, the court is going to have to deal with the constitutionality of the statute the state is using to charge someone with the crime [of possession]," Stein said. "A judge is going to tackle that issue and obviously it's going to take a defense motion to challenge the statute. It's well-written, well-reasoned order and places that statute in legitimate question."

But, the Miami-Dade State Attorney's Office took issue with the bond court judge's decision.

"An uninterrupted line of well established precedents from both the Florida Supreme Court and the District Courts of Appeal reflects in no uncertain terms that the trial courts in this State are bound by the decisions of the Florida Supreme Court and not lower federal courts," according to Ed Griffith of the Miami-Dade State Attorney's Office.

Griffith said the very issue had been resolved in the Florida Supreme Court case, State vs. Dwyer.

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