Florida/Georgia Personal Injury & Workers Compensation

...This timely appeal follows. In addition to challenging the denial of the motion to suppress, Flagg argues for the first time on appeal [1] that section 893.13(6)(a) is unconstitutional because the mens rea requirement in the statute was eliminated by section 893.101, which provides in pertinent part that: The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter. § 893.101(2), Fla....

...ecedent simply because one federal judge has a different view of the law than this court. Moreover, we do not find the analysis in Shelton persuasive because, among other reasons, the decision misperceives the operation of the affirmative defense in section 893.101. The statute does not, as Shelton implied, require the defendant to establish his innocence by proving a lack of knowledge, see Wright, 920 So.2d at 25 (explaining that section 893.101 "does not require the defendant to prove or disprove knowledge"); rather, the statute provides that if the defense is raised, the state has the burden to overcome the defense by proving beyond a reasonable doubt that the defendant knew of the illicit nature of the drugs....

...doubt on the question of whether (defendant) knew of the illicit nature *141 of the controlled substance"). Furthermore, because lack of knowledge is not a defense to a true strict liability crime, [3] the availability of the affirmative defense in section 893.101 undermines the essential premise in Shelton that the offenses in section 893.13 are strict liability crimes that may not be constitutionally punished as felonies....

...the illicit nature of the contraband. See, e.g., Brown v. State, 428 So.2d 250, 252 (Fla. 1983). However, as explained by the Fifth District, the Legislature eliminated' that element, effective May 13, 2002. Knight, 107 So.3d at 453 n. 5; see also, § 893.101, Fla....

...State, 869 So.2d 646 (Fla. 3d DCA 2004) (use of "and/or" in burglary underlying intended offense options); Concepcion v. State, 857 So.2d 299 (Fla. 5th DCA 2003) (use of "and" in oral instructions but "or" in written instructions), superseded on other grounds by § 893.101, Fla....

...ed substance — can be employed only in cases in which the State proves actual, personal possession of the controlled substance. Scott, 808 So.2d at 171-72 . In response to this Court’s decisions, the Legislature enacted a statute now codified in section 893.101, Florida Statutes (2011). Section 893.101 provides in full: (1) The Legislature finds that the cases of Scott v....

...knowledge of the illicit nature of the substance. The statute does not eliminate the element of knowledge of the presence of the substance, which we acknowledged in Chicone, 684 So.2d at 739-40 , and Scott, 808 So.2d at 169 . Since the enactment of section 893.101, each of the district courts of appeal has ruled that the statute does not violate the requirements of due process....

...The circuit court reasoned that the Legislature did not have authority to dispense with a mens rea element for a serious felony crime. The State now appeals the circuit court’s decision in this Court. The State asserts that section 893.13, as modified by section 893.101, is facially constitutional and that the circuit court therefore erred in granting the motions to dismiss....

...edge element. We then examine the limited circumstances in which the absence of a guilty knowledge element has resulted in a holding that the requirements of due process were not satisfied. Finally, we explain our conclusion that sections 893.13 and 893.101 do not violate due process....

...n which definitions of particular criminal offenses were found to violate the requirements of due process. The rationale for each of those cases is not applicable to the context of controlled substance offenses under Florida law. Sections 893.13 and 893.101 do not trigger the concern raised in Lambert and Giorgetti ....

...The controlled substance statutes are further distinguishable from the statutes in Lambert and Giorget-ti — which would impose criminal liability for failing to register regardless of the defendant’s knowledge of the regulation and his or her status — because in section 893.101 the Legislature has expressly provided that a person charged under chapter 898 who did not have knowledge of the illegality of his or her conduct may raise that fact as an affirmative defense. Furthermore, sections 893.13 and 893.101 — unlike the provisions we invalidated in Schmitt, 1969 Piper Navajo, Saiez, Walker, and Delmonico — are rationally related to the Legislature’s goal of controlling substances that have a high potential for abuse, and the statutes do not interfere with any constitutionally protected rights....

...endant — to refute the State’s case. Id. at 52 . Here, the Legislature’s decision to make the absence of knowledge of the illicit nature of the controlled substance an affirmative defense is constitutional. Under section 893.13, as modified by section 893.101, the State is not required to prove that the defendant had knowledge of the illicit nature of the controlled substance in order to convict the defendant of one of the defined offenses....

...defendant as a [criminal] unless he demonstrates the mitigating circumstances.” Patterson, 432 U.S. at 206 , 97 S.Ct. 2319 . Thus, the affirmative defense does not improperly shift the burden of proof to the defendant. III. CONCLUSION In enacting section 893.101, the Legislature eliminated from the definitions of the offenses in chapter 893 the element that the defendant has knowledge of the illicit nature of the controlled substance and created the affirmative defense of lack of such knowledge....

...The statutory provisions do not violate any requirement of due process articulated by this Court or the Supreme Court. In the unusual circumstance where a person possesses a controlled substance inadvertently, establishing the affirmative defense available under section 893.101 will preclude the conviction of the defendant....

...horization of its amended proposals. The Committee proposes two substantive amendments to the drug abuse and trafficking instructions: instructions 25.2 through 25.16. Both amendments are in response to chapter 2002-258, Laws of Florida (codified as section 893.101, Florida Statutes (2006)), which provides as follows: 893.101 Legislative findings and intent.— (1) The Legislature finds that the cases of Scott v....

...nowledge of the illicit nature" of a substance as an element. Next, the Committee recommends adding several paragraphs to each drug abuse and trafficking instruction in order to reflect the affirmative defense and permissive presumption set forth in section 893.101(2)-(3), Florida Statutes (2006)....

...ce may be inferred or assumed. If a person does not have exclusive possession of a thing controlled substance, knowledge of its presence may not be inferred or assumed. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3)....

...ce may be inferred or assumed. If a person does not have exclusive possession of a thing controlled substance, knowledge of its presence may not be inferred or assumed. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

..."Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...be inferred or assumed. If a person does not have exclusive possession of a thing controlled substance *254 , knowledge of its presence may not be inferred or assumed. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...The term "community center" means a facility operated by a nonprofit community-based organization for the provision of recreational, social, or educational services to the public. *257 Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...be inferred or assumed. If a person does not have exclusive possession of a thing controlled substance , knowledge of its presence may not be inferred or assumed. Knowledge of the illicit nature of the controlled substance. Give if applicable. § F.S. 893.101(2) and (3), Fla....

...The substance was (specific substance alleged). 3. (Defendant) [acquired or obtained] [attempted to acquire or obtain] the substance by [misrepresentation]. [fraud]. [forgery]. [deception]. [subterfuge]. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...ce may be inferred or assumed. If a person does not have exclusive possession of a thing controlled substance, knowledge of its presence may not be inferred or assumed. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...ce may be inferred or assumed. If a person does not have exclusive possession of a thing controlled substance, knowledge of its presence may not be inferred or assumed. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...y be inferred or assumed. If a person does not have exclusive possession of a thing controlled substance, knowledge of its presence may not be inferred or assumed. *267 Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...ce may be inferred or assumed. If a person does not have exclusive possession of a thing controlled substance, knowledge of its presence may not be inferred or assumed. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...ce may be inferred or assumed. If a person does not have exclusive possession of a thing controlled substance, knowledge of its presence may not be inferred or assumed. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...to the total sales of the business enterprise. 12. The existence and scope of legitimate uses for the object in the community. 13. Expert testimony concerning its use. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...to the total sales of the business enterprise. 12. The existence and scope of legitimate uses for the object in the community. 13. Expert testimony concerning its use. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...to the total sales of the business enterprise. 12. The existence and scope of legitimate uses for the object in the community. 13. Expert testimony concerning its use. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...Sec'y, Dep't of Corrs., 802 F.Supp.2d 1289 (M.D.Fla.2011) and State v. Washington, No. F11-11019 (Fla. 11th Cir.Ct. Aug. 17, 2011), we hold, as we explicitly did in Taylor v. State, 929 So.2d 665 (Fla. 3d DCA 2006) [1] , that section 893.13, as *723 amended by section 893.101, Florida Statutes (2002), is constitutional....

...State, 920 So.2d 21 (Fla. 4th DCA 2005). Accordingly, the order under review denying postconviction relief is Affirmed. NOTES [1] Taylor states: The defendant was convicted of possession of cocaine. We reject his primary contention for reversal that section 893.101, Florida Statutes (2003), which overruled Chicane v....

...owledge that the contraband was within his presence, and had knowledge of the illicit nature of the contraband. See Garcia, 854 So.2d at 762-64; but see Lee v. State, 835 So.2d 1177, 1178 n. 1 (Fla. 4th DCA 2002) (noting that the legislature enacted section 893.101, Florida Statutes (2002), which has prospective application, to clarify that knowledge of the illicit nature of the controlled substance is not an element of possession but is, rather, an affirmative defense)....

...Donawa’s conviction for possessing drug paraphernalia has on his eligibility for cancellation of removal. That issue is therefore not before us on this appeal. Rather, the question before us is simply this: whether Mr. Donawa’s conviction under Fla. Stat. § 893.13(1)(a)(2), as amended by Fla. Stat. § 893.101, is an aggravated felony as a matter of law....

...§ 893.13(1)(a)(2) qualifies as an aggravated felony. See Fequiere v. Ashcroft, 279 F.3d 1325, 1326 n.3 (11th Cir. 2002) (noting that the then-effective version of the statute qualified as a drug trafficking aggravated felony). After our decision in Fequiere, however, Florida passed Fla. Stat. § 893.101, significantly changing the nature of the offense: (1) The Legislature finds that the [Florida Supreme Court] cases ....

...A person could be convicted under the Florida statute without any knowledge of the nature of the substance in his possession. That same person could not be convicted of the federal crime. There can be no argument, therefore, that Fla. Stat. § 893.13(1)(a)(2), as amended by Fla. Stat. § 893.101, categorically qualifies as an aggravated felony. The government urges us to treat the statute as divisible and apply the modified categorical approach. The government argues that, while the basic offense does not include a mens rea element with respect to the nature of the substance, the affirmative defense defined by Fla. Stat. § 893.101 effectively creates a separate offense under Fla....

...s criminal trial.” The analytical approach the government asks us to apply is therefore not only contrary to Supreme Court precedent, but also unavailing. We therefore conclude that Fla. Stat. § 893.13(1)(a)(2), as amended by Fla. Stat. § 893.101, does not qualify as a drug trafficking aggravated felony under the categorical approach....

...trafficking offense punishable as a felony under federal law. See Moncrieffe, 133 S. Ct. at 1685. III. The BIA erred in finding that, as a matter of law, a violation of Fla. Stat. § 893.13(1)(a)(2), as amended by Fla. Stat. § 893.101, qualifies as a drug 5 The fact that the IJ considered this question, finding in Mr....

.... Specifically, § 893.13 of the Florida Statutes provides that it is unlawful for a person to “sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.” Fla. Stat. § 893.13. And § 893.101 of the Florida Statutes provides that “knowledge of the illicit nature of a controlled substance is not an element” of a § 893.13 offense. Id. § 893.101(2). Construing the sentencing guidelines and their applicability to the same Florida statute, in Smith we considered and rejected the argument Pridgeon espouses....

...The supreme court, however, has recently cautioned the district courts against failing to follow the dictates of a prior supreme court opinion, despite its possible conflict with a subsequent supreme court opinion. Puryear v. State, 810 So.2d 901 (Fla.2002). But for the recent enactment of section 893.101, Florida Statutes, effective May 13, 2002, we would have certified this issue to the supreme court....

...However, we decline to do so here in light of the legislative clarification, notwithstanding that the statute is inapplicable to offenses committed prior to its effective date. GROSS and HAZOURI, JJ., concur. NOTES [1] The legislature has subsequently enacted section 893.101, Florida Statutes (2002), having prospective effect, to clarify that knowledge of the illicit nature of the controlled substance is not an element of possession but an affirmative defense....

...Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011). Maestas further argues that if section 893.13 is not unconstitutional, it is a strict liability crime, with a maximum sentence of two years’ imprisonment. We disagree and uphold the constitutionality of section 893.13 and conclude that section 893.101 does not create a strict liability crime....

...In Shelton , a judge of the United States District Court for the Middle District of Florida found section 893.13 to be unconstitutional on substantive due process grounds. Shelton, 802 F.Supp.2d at 1296-98 , 2011 WL 3236040 at *4-*5. The opinion concluded that section 893.101 removed all mens rea as an element from section 893.13, thereby creating a strict liability offense. Id. As a strict liability offense, the court declared section 893.13 unconstitutional because its penalties are too severe. Id. at 1300-06 , at *7-*12. We first note that this court has already held that section 893.101, Florida Statutes, is constitutional....

...State v. Dwyer, 382 So.2d 333, 334-35 (Fla.1976); Bradshaw v. State, 286 So.2d 4, 6-7 (Fla. 1973), cert. denied, 417 U.S. 919 , 94 S.Ct. 2626 , 41 L.Ed.2d 225 (1974). We find Shelton unpersuasive, as the decision is based on the faulty premise that section 893.101 removed all mens rea from section 893.13 offenses, such that a defendant is strictly liable for any unknowing possession or delivery. In our view, section 893.101 did not remove the guilty knowledge element from these offenses, thereby converting section 893.13 offenses into strict liability crimes....

...ses. Chicone, 684 So.2d at 740-41 . However, Chicone went further, creating an additional scienter requirement: Knowledge of the “illicit nature” of the substance. Id. at 744 . The legislature superseded this fourth element with the enactment of section 893.101....

...A defendant’s claim that he or she did not know that white powder was concealed in an item possessed is different from the claim that he or she did not know that the concealed powder was an illegal drug. In response to the holdings in Chicone and Scott v. State, 808 So.2d 166 (Fla. 2002), the legislature enacted section 893.101, which provides: (1) The Legislature finds that the cases of Scott v....

...fic substance and knowledge of the presence of the substance, and still be able to assert the defense that he did not know of the illicit nature of the specific substance.” Burnette v. State, 901 So.2d 925, 927 (Fla. 2d DCA 2005) (emphasis added). Section 893.101 recognizes that “actual or constructive possession” must be found for the presumption to apply....

...2d DCA 1983) (describing the distinction between general and specific intent crimes). Contrary to the holding of Shelton , the statute does not punish strictly an unknowing possession or delivery. Finally, the existence of the affirmative defense set out in section 893.101 undermines the notion that the legislature has created a strict liability crime. To this point, we agree with the reasoning set forth by the First District in its recent opinion of Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011): *996 [Shelton] misperceives the operation of the affirmative defense in section 893.101. The statute does not, as Shelton implied, require the defendant to establish his innocence by proving a lack of knowledge, see Wright, 920 So.2d at 25 (explaining that section 893.101 “does not require the defendant to prove or disprove knowledge”); rather, the statute provides that if the defense is raised, the state has the burden to overcome the defense by proving beyond a reasonable doubt that the defendant knew of the illicit nature of the drugs....

...sonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance”). Furthermore, because lack of knowledge is not a defense to a true strict liability crime, the availability of the affirmative defense in section 893.101 undermines the essential premise in Shelton that the offenses in section 893.13 are strict liability crimes that may not be constitutionally punished as felonies. Id. at 140-41 (footnote omitted). We hold that section 893.101 did not remove scienter from section 893.13 offenses and did not create an unconstitutional strict liability crime....

...We have held that "[s]ince the jury is entitled to be instructed on the elements of the offense, it cannot be harmless error to fail to do so especially when the omission is brought to the attention of the trial court by the defendant." Scott v. State, 808 So.2d 166, 170-71 (Fla. 2002), superseded on other grounds by § 893.101, Fla....

...State, 684 So.2d 736, 737 (Fla.1996) (holding that guilty knowledge is an element of possession of a controlled substance and possession of drug paraphernalia). The district court rejected the State's argument that the holding in Chicone was superseded by section 893.101, Florida Statutes (2002)....

...If the failure to prove at trial one element of a crime is not fundamental error, then neither can failure to instruct on one element be fundamental error. CANTERO and BELL, JJ., concur. NOTES [1] After the Scott decision was issued in January 2002, the Legislature enacted section 893.101, Florida Statutes (2002), which sets forth legislative intent that knowledge of the illicit nature of a controlled substance is not an element of any offense under chapter 893 but rather lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of the chapter....

...the State carries its burden of proving possession giving rise to the Medlin presumption. It appears the Legislature agrees. After the Scott decision was issued in January 2002, the Legislature enacted the following statute, effective May 13, 2002: 893.101....

...the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection. § 893.101, Fla. Stat. (2002). Following this enactment, this Court instructed the Committee on Standard Jury Instructions to revise the standard jury instructions in order to fully reflect the provisions of section 893.101. See Standard Jury Instructions in Criminal Cases, 869 So.2d 1205, 1206 (Fla.2004). Many district courts, including the one below, have held that section 893.101 may not be applied retroactively and is not applicable to cases in which the offense was committed prior to its effective date....

...Second, he deleted the fourth element entirely. The prosecutor explained to the trial court and defense counsel that he had deleted the fourth element pertaining to the defendant's knowledge of the illicit nature of the substance in accordance with section 893.101....

...argues that the trial court committed fundamental error in failing to read the fourth element of the standard jury instruction on trafficking in cocaine, to-wit: "(Defendant) knew the substance was [cocaine] [a mixture containing cocaine]." Fla. Std. Jury Instr. (Crim.) 25.10. Unfortunately, for offenses occurring after section 893.101 became effective, the standard jury instruction is inaccurate in this respect. Section 893.101(2) provides, in pertinent part, that "knowledge of the illicit nature of a controlled substance is not an element of any offense under [chapter 893]." Thus the statute eliminated what had been the fourth element of the State's proof of a trafficking offense, i.e., that the defendant knew that the substance was cocaine or a mixture containing cocaine. See Nedd v. State, 965 So.2d 1287, 1288 n. 3 (Fla. 2d DCA 2007); Snell v. State, 939 So.2d 1175, 1179 n. 1 (Fla. 4th DCA 2006). Section 893.101 became effective May 13, 2002. See Whitehurst v. State, 852 So.2d 902, 903 (Fla. 2d DCA 2003). Because the date of Jose A.'s alleged offense was February 27, 2006, section 893.101 is applicable to his case....

...the substance to establish a prima facie case on the trafficking charge. It follows that the trial court did not err in failing to instruct the jury that the State was required to *1217 prove Jose A.'s knowledge of the nature of the substance. Under section 893.101, "[l]ack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of [chapter 893]." § 893.101(2)....

...The statute provides further that when a defendant asserts such an affirmative defense, "the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance." § 893.101(3)....

...e alleged)." Id.; Delva, 575 So.2d at 644. The 2002 legislature effectively abrogated Dominguez's requirement that the State prove the defendant's knowledge of the nature of the substance constituting the subject of the trafficking offense. However, section 893.101 addresses only the fourth element of the instruction concerning knowledge of the illicit nature of the substance, not the first element requiring that the defendant must knowingly sell, purchase, manufacture, deliver, bring into this state, or possess the substance....

...First, the trial court must include the word "knowingly" in the first element of the standard jury instruction for trafficking in cocaine. Second, the trial court should consider whether it should also include the third element of the standard jury instruction on the lesser included offense of possession of cocaine. Section 893.101 addresses the issue of the defendant's knowledge of the illicit nature of a controlled substance, not the separate issue of the defendant's knowledge of its presence....

...[4] One might reasonably draw an inference that the black packages containing cocaine were in the large plastic bag that had been stored under the mobile home. However, there was no evidence presented at the trial that the black packages were actually in the large plastic bag. [5] In section 893.101, the Florida Legislature specifically directed that "knowledge of the illicit nature of a controlled substance" is not an element of any offense under [chapter 893—the "Florida Comprehensive Drug Abuse Prevention and Control Act]." § 893.101(2) (emphasis added)....

...As we will discuss more fully below, knowledge of the illicit nature of a controlled substance is distinct from knowledge of its presence. See De La Cruz v. State, 884 So.2d 349, 351 n. 1 (Fla. 2d DCA 2004). Thus, in an apparent further attempt to comply with section 893.101, the prosecutor in this case deleted the reference to the defendant's "knowledge of the illicit nature of the thing" from the constructive possession section of all of the instructions concerning both of the charged offenses and the lesser included offenses....

...Finally, with respect to Snell's claim that, during closing argument, the prosecutor impermissibly commented on Snell's right to remain silent, the comment was not objected to and is not preserved for appeal. Affirmed. GROSS and HAZOURI, JJ., concur. NOTES [1] The alleged crime was committed in 2001, which was before section 893.101, Florida Statutes, was amended, deleting the requirement that the state prove that the defendant was aware of the illicit nature of the drugs.

...[2] The parties disagree as to whether the descriptive phrase "smoking crack pipe" should be interpreted as meaning that smoke was emanating from the pipe or that the pipe was simply one used for smoking crack cocaine. The testimony at trial provides no additional insight. [3] Since the enactment of section 893.101, Florida Statutes (2002), which became effective May 13, 2002, a defendant's knowledge of the illicit nature of the contraband is no longer required to establish a defendant's constructive possession of contraband. See ch. 02-258, § 1, at 1848, Laws of Fla. Rather, a defendant may assert his lack of knowledge of the illicit nature of contraband as an affirmative defense. § 893.101(2)....

...WHATLEY and LaROSE, JJ., Concur. NOTES [1] Since the date of the alleged offense was September 6, 2002, the State was not required to prove that Mr. Balmori had knowledge of the heroin's illicit nature. See Garcia v. State, 901 So.2d 788, 792 n. 1 (Fla.2005) (citing § 893.101, Fla....

...on of May 4, 2005, and substitute the following in its place: We affirm Wright's conviction for possession of cocaine and his sentence of two years in prison. Wright is challenging, on substantive due process grounds, the facial constitutionality of section 893.101, Florida Statutes, amended to remove guilty knowledge as an element of possession of a controlled substance and adding lack of knowledge of the illicit nature of a controlled substance as an affirmative defense....

...Once raised, the defendant carries the burden of proving the defense. White v. State, 757 So.2d 542, 546 (Fla. 4th DCA 2000). It, nevertheless, remains impermissible to shift the burden of proof of an element of the offense to the defendant. Cohen, 568 So.2d at 51. Section 893.101, Florida Statutes, states: Legislative findings and intent....

...There is a caveat that, once this door is opened, either actual or constructive possession of the controlled substance will give rise to a permissive presumption that the possessor knew of the substance's illicit nature, and the jury instructions will include this presumption. § 893.101(3), Fla....

...State, 339 So.2d 209, 211 (Fla.1976). Further, there is a rational purpose for this presumption, and it is tied to a legitimate governmental interest. Accordingly, we reject Appellant's substantive due process challenge to the facial constitutionality of section 893.101, Florida Statutes, expressly declaring it valid....

...es examining the facial constitutionality of the statute here challenged. The one case that dealt with any constitutional ramifications from this statute was Norman v. State, 826 So.2d 440 (Fla. 1st DCA 2002), holding that retroactive application of 893.101 was unconstitutional under the Florida Constitution.

...On May 17, 2006, this Court issued its opinion in Taylor v. State, 929 So.2d 665 (Fla. 3d DCA 2006), review denied, 952 So.2d 1191 (Fla.2007), rejecting Taylor’s facial constitutional challenge to section 893.13, Florida Statutes (2003), as amended by section 893.101, Florida Statutes (2003)....

...In 2002, in response to the Florida Supreme Court’s interpretation of the statute in Chicane v. State, 684 So.2d 736 (Fla.1996), and later in Scott v. State, 808 So.2d 166 (Fla.2002), in which it held that knowledge of the nature of the substance was an element of these drug offenses, the Florida legislature enacted section 893.101. 893.101 Legislative findings and intent.— (1) The Legislature finds that the cases of Scott v....

...lor and the other district courts, such as the First District in Johnson and Harris , the Second District in Burnette , and the Fourth District in Wright , rejected facial challenges to the constitutionality of section 893.13, as amended by section .893.101, on due process grounds, none of these cases “particularizes the source of due process upon which it relies.” Thus, the trial court reasoned: - In the absence of such particularization I am obligated as a Florida trial court to presume th...

...[T]he federal Constitution ... represents the floor for basic freedoms; the state constitution, the ceiling. Armstrong v. Harris, 773 So.2d 7, 17 (Fla.2000) (quoting Traylor, 596 So.2d at 962 ). Thus, if this Court concluded in Taylor that section 893.13, as amended by section 893.101, did not violate Florida constitutional due process guarantees, then it necessarily follows that the amended statute also passed federal constitutional due process muster....

affirmative defense defined by Florida Statute § 893.101 (which includes a mens rea element) renders §

...People just don't buy nothing." *772 Based on these facts and the state's comments in closing argument, it is clear that the element of guilty knowledge was in dispute. We recognize that the legislature voiced its disagreement with the supreme court's interpretation of the possession statute by enacting section 893.101 to make clear that knowledge of the illicit nature of the controlled substance is an affirmative defense and not, as the majority in Scott held, an essential element of the offense....

...State, 808 So.2d 166, 170-71 (Fla.2002) ("Since the jury is entitled to be instructed on the elements of the offense, it cannot be harmless error to fail to do so especially when the omission is brought to the attention of the trial court by the defendant."). [2] Creating Section 893.101, Florida Statutes, Chapter 2002 258, section 1, Laws of Florida, provides: 893.101....

...1st DCA 2004). To prove constructive possession of the 29.2 pounds of cannabis, the State had to establish that Appellant knew of the presence of the contraband on or about his premises and had the ability to maintain dominion and control over it. § 893.101(1)-(2), Fla....

...proval, required the State to prove that Appellant knew that the substance contained in the large grocery bag is cannabis. In 2002, the Florida Legislature eliminated this fourth element as a requirement for a conviction for trafficking in cannabis. § 893.101, Fla....

...charged against Garcia was allegedly committed. See Chicone v. State, 684 So.2d 736, 737 (Fla.1996) (holding that "guilty knowledge is an element of possession of a controlled substance ... and possession of drug paraphernalia"). The State relies on section 893.101, Florida Statutes (2002), which was adopted by the legislature in response to Chicone, to justify the trial court's failure to give a guilty knowledge instruction on the possession charge. Under that statute "knowledge of the illicit nature of a controlled substance is not an element" of drug offenses, but lack of such knowledge is an affirmative defense. § 893.101(1). These statutory provisions are, however, not applicable to this case since they became law after the alleged commission of the offense by Garcia. See Norman v. State, 826 So.2d 440, 441 (Fla. 1st DCA 2002) (holding that application of section 893.101 to offense occurring before enactment of statute would be "repugnant to article X, section 9, of the Florida Constitution, which prohibits retroactive application of statutes in criminal proceedings"); Blunt v. State, 831 So.2d 770, 772 (Fla. 4th DCA 2002) (holding that section 893.101, which "became effective as of May 13, 2002, may not be applied retroactively" to an offense which occurred before that date); Thomas v. State, 844 So.2d 723, 725 (Fla. 5th DCA 2003) (citing Blunt and Norman and holding that section 893.101 cannot be applied retroactively)....

...January 25, 2012. Jerry W. Smith, in proper person. Pamela Jo Bondi, Attorney General, for appellee. Before SHEPHERD, CORTIÑAS, and LAGOA, JJ. PER CURIAM. Affirmed. See Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); Little v....

...guilty, following a jury trial, of possession of diazepam, driving under the influence, driving while his license was suspended or revoked, and refusing to allow alcohol testing. While we reject Burnette's *927 challenge to the constitutionality of section 893.101, Florida Statutes (2003), we agree that the jury instruction regarding the lack of knowledge affirmative defense constitutes reversible error. Burnette was charged with possession of the controlled substance diazepam, also known as Valium, pursuant to section 893.13(6), Florida Statutes (2003). Section 893.101 clarifies the elements of an offense of possession of a controlled substance, expressly stating that "knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter," and the supreme court cases holding otherwise are "contrary to legislative intent." See Scott v. State, 808 So.2d 166 (Fla.2002) (holding in part that guilty knowledge is an element of possession of a controlled substance under section 893.13(6)); Chicone v. State, 684 So.2d 736 (Fla.1996) (same). Section 893.101 also creates an affirmative defense for lack of knowledge of the illicit nature of a controlled substance and states that, when a defendant asserts such a defense, "possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance." When the affirmative defense is raised, the jury shall be instructed on the permissive presumption. § 893.101(3)....

...If you find Daniel Burnette was in actual or constructive possession of a substance, you may presume that Daniel Burnette knew of the elicit [sic] nature of the substance. Any presumption may be overcome by competent evidence. We will first address Burnette's constitutional challenge to section 893.101. Burnette argues that section 893.101 violates due process by shifting the burden to the defendant to prove that he lacked knowledge of the illicit nature of the substance, thereby relieving the State of its burden to prove each element of the crime beyond a reasonable doubt....

...her facts that, if true, would establish a valid excuse or justification, or a right to engage in the conduct in question. Cohen, 568 So.2d at 51-52. In other words, "an affirmative defense says, `Yes, I did it, but I had a good reason.'" Id. at 52. Section 893.101 expressly states that knowledge of the nature of a substance is not an element of the offense of possession....

...nse, i.e., possession of a specific substance and knowledge of the presence of the substance, and still be able to assert the defense that he did not know of the illicit nature of the specific substance. *928 Thus, the affirmative defense created by section 893.101 does not violate due process by abrogating the State's burden of proving the defendant's guilt beyond a reasonable doubt, and Burnette's constitutional challenge must fail. Burnette's second issue on appeal challenges the instruction given to the jury regarding the affirmative defense created in section 893.101....

...State, 830 So.2d 234, 236 (Fla. 4th DCA 2002). A trial court should not give instructions that are confusing, contradictory, or misleading. Butler v. State, 493 So.2d 451 (Fla.1986). In this case, the trial court gave an incomplete instruction on the law as set out in section 893.101 by failing to inform the jury that Burnette's lack of knowledge of the illicit nature of the substance was a defense to the possession charge....

...possess" the proscribed drugs. See, e.g., § 893.13(1)(a), Fla. Stat. Thus, the Legislature has made guilty knowledge of possession an element of the crime of trafficking. Even the statutory overruling of Chicone v. State, 684 So.2d 736 (Fla.1996), in section 893.101, went only to the element of knowledge of the illicit nature of the substance, not knowledge of its possession....

...ne, the instruction was fundamental error. We therefore reverse and remand for a new trial. Reversed and remanded. STEVENSON, C.J., and TAYLOR, J. concur. NOTES [1] The precise holding of Garcia is limited to cases tried before the effective date of section 893.101, Florida Statutes....

...Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee. Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge. SCHWARTZ, Senior Judge. The defendant was convicted of possession of cocaine. We reject his primary contention for reversal that section 893.101, Florida Statutes (2003), which overruled Chicone v....

...Having concluded that the court committed reversible error in failing to give the *904 Chicone instruction as requested, we reverse and remand for further proceedings consistent with this opinion. Reversed and remanded. KELLY and CANADY, JJ., concur. NOTES [1] § 893.101, Fla....

...Before EMAS and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge. SCHWARTZ, Senior Judge. As held by four unanimous district courts of appeal, including this one, we again reject Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011) and hold that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional....

...State, 837 So.2d 366, 369-70 (Fla.2002) (holding that failure to give proper instruction regarding disputed element of crime charged was fundamental error requiring reversal and stating that "fundamental error is not subject to harmless error review"). Section 893.101, Florida Statutes (2002), which was adopted by the legislature in response to Chicone, does not remedy the trial court's failure to give a guilty knowledge instruction in this case. Under that statute, "knowledge of the illicit nature of a controlled substance is not an element" of drug offenses, but lack of such knowledge is an affirmative defense. § 893.101(1)....

...See ch.2002-258, § 1, at 1848, Laws of Fla.; Garcia v. State, 854 So.2d 758 (Fla. 2d DCA 2003) (citing Thomas v. State, 844 So.2d 723, 725 (Fla. 5th DCA 2003), Blunt v. State, 831 So.2d 770, 772 (Fla. 4th DCA 2002), and Norman v. State, 826 So.2d 440, 441 (Fla. 1st DCA 2002), for the proposition that section 893.101 cannot be applied retroactively)....

...4th DCA 2002). Accordingly, failure to instruct the jury on the element of knowledge of the illicit nature of the substance constituted fundamental error, entitling appellant to a new trial. Reed v. State, 837 So.2d 366 (Fla.2002); Blunt, 831 So.2d at 771-72. Section 893.101, Florida Statutes (2002), may not be applied retroactively to this case because the offense was alleged to have occurred before that statute was enacted....

...638, 747 N.E.2d 1253, 1259 (2001) (stating what an officer "sees, smells or hears" are "plain-view observations"). I cannot say the trial court erred in concluding from these facts that De La Cruz had the ability to control the contraband. Thus, I would affirm the decision of the trial court. NOTES [1] Section 893.101(2), Florida Statutes (2002), was enacted on May 13, 2002, before the date of De La Cruz's offense....

...State, 813 So.2d 56 (Fla.2002), decided before the amendment took effect, the supreme court ruled Chicone applied in a sale or delivery of a controlled substance prosecution. In Scott, the supreme court ruled that failure to give the instruction when warranted could not be harmless error. [3] In creating section 893.101, Florida Statutes, Chapter 2002-258, section 1 provides: 893.101....

...Thus, this admission provides competent, substantial evidence that Hernandez attempted to commit the first two elements of the crime of trafficking in cocaine. See Snell, 939 So.2d at 1179 , 1179 n. 1 (setting out the three elements of trafficking in cocaine for offenses occurring after the enactment of section 893.101)....

...the illicit nature of the substance — i.e., knowledge that the substance was in fact cocaine — as an additional element of the offense of trafficking in cocaine. See State v. Dominguez, 509 So.2d 917 (Fla.1987). In 2002, the Legislature enacted section 893.101, Florida Statutes, eliminating knowledge of a controlled substance’s illicit nature as an element of any offense under chapter 893. Instead, the lack of such knowledge may be raised as an affirmative defense. See § 893.101(2), Fla. Stat. (2010). We observe that although several provisions of the Florida Standard Jury Instructions were amended to conform to section 893.101, the instruction on the offense of trafficking in cocaine was left unchanged....

...ment of trafficking in cocaine. Compare Leigh v. State, 967 So.2d 1102, 1105 (Fla. 4th DCA 2007) (listing “the defendant knew the substance was cocaine” as an element of trafficking, when the appellant’s offense occurred after the enactment of section 893.101), with Barrientos v. State, 1 So.3d 1209, 1216-17 (Fla. 2d DCA 2009) (upholding the trial court’s decision to remove knowledge of the illicit nature of the substance from an instruction on trafficking in cocaine, and noting that, "for offenses occurring after section 893.101 became effective, the standard jury instruction is inaccurate”). We direct the Supreme Court Committee on Standard Jury Instructions in Criminal Cases to consider whether the instruction on this offense must be altered in light of section 893.101....

...1983) (listing three elements of constructive possession). At the charge conference, however, the trial court and parties discussed several variations on the jury instruction, and the court, over the defendants' objection, decided to omit the third element, based on section 893.101. In section 893.101(2), the legislature found that "knowledge of the illicit nature of a controlled substance is not an element of any offense under [chapter 893, Florida Statutes]." On appeal, Person does not contest the omission of the third element fr...

...Mose Harris appeals a judgment of conviction and habitual felony offender sentence for the sale and delivery of cocaine within 1,000 feet of a church in violation of section 893.13(1)(e)1, Florida Statutes (2004). Among other issues, appellant argues that, because section 893.101, Florida Statutes (2004), eliminates knowledge of the illicit nature of a substance as an element of the offense, his convictions violate the due process clauses of the federal and Florida constitutions. We cannot agree. Section 893.101 has been upheld against challenges based on the due process clause....

...to contain a knowledge requirement absent an express indication of a contrary intent. An express provision dispensing with guilty knowledge will always control, of course, since in that instance the Legislature will have made its intent clear."). By section 893.101, the Florida Legislature has clearly stated its express intent to eliminate the guilty knowledge requirement for chapter 893 offenses....

...Affirmed. BOOTH and KAHN, JJ., concur. NOTES [1] Knowledge of the illicit nature of a controlled substance is no longer an element of the offenses of possession, or sale or delivery of a controlled substance for offenses committed after May 13, 2002. Section 893.101, Florida Statutes (2002). Appellant committed his offense prior to the effective date of section 893.101. See Norman v. State, 826 So.2d 440 (Fla. 1st DCA 2002) (holding section 893.101 cannot be applied retroactively).

...A written copy of the instructions was provided to the jury for its deliberations. The jury convicted Miller of possession of cocaine, along with other charges. He appeals only his conviction for possession of cocaine. In 2002, the Florida Legislature enacted section 893.101, Florida Statutes, which expressly provides that knowledge of the illicit nature of a controlled substance is not an element of any offense under chapter 893....

...State, 684 So.2d 736 (Fla. 1996), which had held that the state was required to prove a fourth element of the offense, namely that the defendant knew of the illicit nature of the substance. See Barrientos v. State, 1 So.3d 1209, 1216 (Fla. 2d DCA 2009). Section 893.101, Florida Statutes, thus makes possession of a controlled substance a general intent crime and provides that lack of knowledge of the illicit nature of a controlled substance is an affirmative defense....

...11); the parties’ Supplemental Memoranda (Dkts. 25, 31, 36); and the Amicus Brief filed in support of Petitioner. (Dkt. 28) On May 13, 2002, the Florida Legislature enacted changes to Florida’s Drug Abuse Prevention and Control law, Fla. Stat. § 893.13 , as amended by Fla. Stat. § 893.101 ....

...sor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection. Fla. Stat. § 893.101 ....

...s a controlled substance without regard to whether he does so purposefully, knowingly, recklessly, or negligently. Thus, In the absence of a mens rea requirement, delivery of cocaine it is a strict liability crime under Florida law. See Fla. Stat. §§ 893.101 , 893.13....

...at 784-85 ; see also Dep’t of Legal Affairs, 434 So.2d at 311 . Therefore, no deference is due to the state court’s decision. See id. As such, this Court reviews de novo Plaintiff’s constitutional challenge to Fla. Stat. § 893.13 , as amended by § 893.101, and finds the statute to be facially unconstitutional, as it is violative of the Constitution’s due process clause....

...36 at 7); or, alternatively, (2) “it is difficult to conceive of large numbers of people ‘innocently’ selling or purchasing flour and sugar in plastic baggies for cash on a streetcorner.” (Id. at 4) Each of these arguments is discussed in turn. 1. The Affirmative Defense Set Forth in Fla. Stat. § 893.101 Cannot Be Both an Affirmative Defense and an Element of the Offense In a vacillating and legally unsupported argument, the State contends that the question of whether the statute results in a strict liability offense cannot be answered in “a simple ‘yes’ or ‘no’.” (Dkt....

...36 at 7) However, the Florida Legislature’s removal of a mens rea requirement from drug offenses could not be more clear. The statute explicitly provides “knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter.” Fla. Stat. § 893.101 (2)....

...roof of that element could not constitutionally be shifted to the Defendant under the guise of an affirmative defense. In point of fact, this aspect of the State’s response is wholly without merit. The legislative intent could not be more clear— § 893.101 “expressly provides that knowledge of the illicit nature of a controlled substance is not an element of any offense under chapter 893.” Miller v....

...1 at 36) and any other outstanding motions are DENIED; (4) The Court will not certify any issue for appellate consideration; (5) In accordance with Rule 57 of the Federal Rules of Civil Procedure, a *1316 Declaratory Judgment shall be entered separately, declaring Fla. Stat. § 893.13 , as amended by Fla Stat. § 893.101, unconstitutional; and, (6) The CLERK is directed to mail a certified copy of this Order to the Clerk of the Circuit Court for the Ninth Judicial Circuit, in and for Osceola County, Florida. . Because Petitioner did not assert lack of knowledge of the illicit nature of a controlled substance as an affirmative defense (See Fla. Stat. § 893.101 (2)), the jury was instructed that it must convict Petitioner upon sufficient proof that Petitioner had, in fact, delivered cocaine....

...28 at 26-30) . Of course, where, as here, the legislative intent clearly eliminates the mens rea require *1300 ment, the Court is powerless to cure the statute by engrafting a knowledge requirement that is squarely contrary to that intent. See Fla. Stat. § 893.101 ....

...The statute does not specify a necessary mental state, an issue the Florida Supreme Court first addressed in Chicone v. State.4 Reviewing a conviction for cocaine possession, the court held that the State was required to prove that the 1 FLA. STAT. § 893.101. 2 Id....

...includes both knowledge of the presence of the controlled substance as well as knowledge of its illicit nature.6 The Florida Legislature responded swiftly to the latter decision. On May 13, 2002, it enacted a statute, now codified at FLA. STAT. § 893.101, amending the Drug Abuse Prevention and Control Act....

...where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.7 5 Id. at 744. 6 Scott v. State, 808 So. 2d 166, 169 (Fla. 2002). 7 FLA. STAT. § 893.101 (citations omitted). 3  Case: 11-13515 Date Filed: 08/24/2012 Page: 4 of 15 The Florida Supreme Court recently considered a facial challenge to the Act as...

...conviction relief, which the trial court denied. Again, the court of appeal affirmed without comment.14 At each stage, Shelton made a due process argument akin to 11 Shelton did not assert lack of knowledge of cocaine’s illicit nature as an affirmative defense, as Section 893.101 permits....

...t apply. But the trial court held that the statement was inadmissible and would not be considered. Therefore, without the inculpatory statement, the circumstantial evidence standard remains applicable to the instant case. [2] The Legislature enacted section 893.101, Florida Statutes (2002), to eliminate the element of knowledge of the illicit nature of the drugs for offenses charged under Chapter 893. The statute provides in pertinent part that "knowledge of the illicit nature of a controlled substance is not an element" of drug offenses, but lack of such knowledge "is an affirmative defense." § 893.101(2), Fla....

...State, 857 So.2d 969 (Fla. 2d DCA 2003); Garcia v. State, 854 So.2d 758 (Fla. 2d DCA 2003); Thomas v. State, 844 So.2d 723, 725 (Fla. 5th DCA 2003); Blunt v. State, 831 So.2d 770, 772 (Fla. 4th DCA 2002). Hence, for offenses that occur after the effective date of section 893.101, knowledge of the illicit nature of the drugs will not be an element in constructive possession cases....

...or about his premises and has the ability to maintain control over said controlled substance." Hively v. State, 336 So.2d 127, 129 (Fla. 4th DCA 1976); see Hargrove v. State, 928 So.2d 1254, 1256 n. 3 (Fla. 2d DCA 2006) (noting the 2002 enactment of section 893.101(2), Florida Statutes, eliminated the requirement to show the defendant's knowledge of the illicit nature of the contraband to prove constructive possession of contraband, but allowed an affirmative defense of lack of knowledge of illicit nature)....

...State, 937 So.2d 180, 182 (Fla. 4th DCA 2006). We review the trial court's "decision on the giving or withholding of a proposed jury instruction... under the abuse of discretion standard of review." McKenzie v. State, 830 So.2d 234, 236 (Fla. 4th DCA 2002). Section 893.101(2) states that the "[l]ack of knowledge of the illicit nature of a controlled substance is an affirmative defense" to the crime of possession....

...Should a defendant raise this defense, the statute requires the trial court to instruct the jury that "possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance." § 893.101(3), Fla. Stat. This court explained the genesis of section 893.101 as follows: In 2002, the Florida Legislature enacted section 893.101, Florida Statutes, which expressly provides that knowledge of the illicit nature of a controlled substance is not an element of any offense under chapter 893....

...State, 684 So.2d 736 (Fla.1996), which had held that the state was required to prove a fourth element of the offense, namely that the defendant knew of the illicit nature of the substance. See Barrientos v. State, 1 So.3d 1209, 1216 (Fla. 2d DCA 2009). Section 893.101, Florida Statutes, thus makes possession of a controlled substance a general intent crime and provides that lack of knowledge of the illicit nature of a controlled substance is an affirmative defense. See Wright v. State, 920 So.2d 21, 24 (Fla. 4th DCA 2005). Miller v. State, 35 So.3d 162, 163 (Fla. 4th DCA 2010). We also explained in Miller that the affirmative defense recognized by section 893.101(2) "does not require that the defendant offer evidence that he did not know that the possession of cocaine was illegal." Id....

...that the defendant knew of the presence of the contraband and was able to exercise dominion and control over it. See Diaz v. State, 884 So.2d 387 (Fla. 2d DCA 2004). Knowledge of the illicit nature of the controlled substance is no longer required. § 893.101, Fla....

...Fetherolf, 388 So.2d 38 (Fla. 5th DCA 1980). REVERSED and REMANDED for reinstatement of the information. PLEUS and ORFINGER, JJ., concur. NOTES [1] Bell has failed to file an answer brief in this case. [2] See § 893.135(1)(b)1.a., Fla. Stat. (2001). [3] In the instant case, section 893.101 of the Florida Statutes (2002) which established that knowledge of the illicit nature of a controlled substance is not an element of the offense does not apply because Bell committed the crime on April 10, 2002, and the statute became effective a month later, on May 13, 2002....

...of `harmless error.'"). Cf. State v. Delva, 575 So.2d 643 (Fla.1991) (holding that failure to instruct jury on element of crime that is not disputed is not fundamental error and, thus, is subject to contemporaneous objection rule). The enactment of section 893.101, Florida Statutes (2002), which became effective as of May 13, 2002, does not change the result in the case at bar, which involves a 1999 offense....

...Accordingly, the trial court did not err in admitting the political discussion contained in the taped telephone conversation. Finally, we summarily reject the issues raised in Blanco’s supplemental brief. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011) (holding that section 893.13, Florida Statutes, as amended by section 893.101, Florida Statutes (2002) is constitutional); Comparato v....

...Robert Corbin Smith, Jr., (“Appellant”) challenges his conviction and three-year sentence for trafficking in hydrocodone raising three arguments. He challenges the trial court’s denial of his motions to suppress statements and physical evidence, and he argues that section 893.101, *967 Florida Statutes, renders the statute under which he was convicted, section 893.135(l)(e)l.a., Florida Statutes (2010), an unconstitutional strict liability statute....

...are not relevant here. See Shular, 140 S. Ct. at 784 (noting that under Section 893.13(1)(a), “‘knowledge of the illicit nature of a controlled substance is not an element,’ but lack of such knowledge ‘is an affirmative defense’”) (quoting Fla. Stat. § 893.101(2)). USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 16 of 23 16 Opinion of the Court 21-13963 hashish were defined as the same controlled substance under Flor- ida law” in that both fell under the definition of “cannabis.” Id....

...Ruiz has been cited favorably by our supreme court in State v. Hoggins, 718 So.2d 761 (Fla.1998), which recognized that our state constitutional law prohibits commenting on post-arrest silence. Our reversal makes it unnecessary for us to address appellant's argument that section 893.101, Florida Statutes (2003), which eliminated knowledge of the illicit nature of a controlled substance as an element of a possession offense, is unconstitutional. See Wright v. State, 30 Fla. Law Weekly D1495, ___ So.2d. ___, 2005 WL 1398026 (Fla. 4th DCA Jun.15, 2005) (holding section 893.101 constitutional)....

...Marcella Finklea appeals her conviction and sentence for possession of a controlled substance and possession of drug paraphernalia. The primary issue at trial was whether appellant knowingly possessed the drugs and paraphernalia, raised as an affirmative defense. See § 893.101, Fla....

...No comments have been filed with the Court in response to publication. The Committee’s proposed changes affect the following existing criminal jury instructions: 25.2 (Drug Abuse—Sale, Purchase, Manufacture, Delivery, or 1. In State v. Adkins, this Court found that section 893.101, Florida Statutes (2011), had “expressly eliminate[d] knowledge of the illicit nature of the controlled substance as an element of controlled substance offenses and expressly create[d] an affirmative defense of lack of knowledge of the illicit nature of the substance.” 96 So....

...comments to all five of the above-listed instructions explaining the issue as follows: Unlike the trafficking statutes, the statutes for these crimes do not contain the word “knowingly.” Also, the affirmative defense statute of section 893.101, Florida Statutes, addresses only “knowledge of illicit nature” and not “knowledge of presence.” Because of case law, “knowledge of presence” is an element of possession, which is why [an instruction on k...

...We decline to authorize the Committee’s proposed amendments to these five instructions insofar as the treatment of “knowledge of presence” is concerned. In State v. Adkins, 96 So. 3d at 414-16, this Court addressed a facial challenge to the constitutionality of section 893.101, Florida Statutes (2011).3 The 3. As currently codified the statute is identical. See § 893.101, Fla. Stat. (2014). This statute was created by chapter 2002-258, Laws of Florida, which provided: Section 1. Section 893.101, Florida Statutes, is created to read: 893.101 Legislative findings and intent.— (1) The Legislature finds that the cases of Scott v....

...under chapter 893, Florida Statutes (2011), was a violation of the requirements of due process of law under the United States and Florida Constitutions. This Court reversed that decision. See Adkins, 96 So. 3d at 412, 423. In its analysis of the constitutionality of 893.101, the plurality opinion said, “The statute does not eliminate the element of knowledge of the presence of the substance ....

...An opinion concurring in result found that the statute “continue[d] to require the State to prove that a defendant had knowledge of the presence of the controlled substance as an element of drug-related offenses.” Id. at 424 (Pariente, J., concurring in result). The effect of section 893.101 was to exclude “knowledge of the illicit nature of a controlled substance” as an element of “any offense under this chapter.” In Adkins, in the process of finding the statute constitutional, a majority of the Court found that “knowledge of the presence” continued to be an element of drug-related offenses. More recently, the Court observed: In Adkins, a majority of the Court held that the guilty knowledge element, in light of the express language in section 893.101, Florida Statutes (2011), is limited to knowledge of the presence of the substance sold, purchased, manufactured, delivered, or brought into the state....

...ed, and the substance was located in a common area in plain view and in the presence of the defendant. Knowledge of the illicit nature of the controlled substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla....

...the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant. Knowledge of the illicit nature of the controlled substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.§ 893.101(2) and (3), Fla....

...d substance, whether or not there is an agency relationship. 21  Knowledge of the illicit nature of the controlled substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.§ 893.101(2) and (3), Fla....

...If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed. Knowledge of the illicit nature of the controlled substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.§ 893.101(2) and (3), Fla....

...and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator. Knowledge of the illicit nature of the controlled substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.§ 893.101(2) and (3), Fla....

...nd the substance was located in a common area in plain view and in the presence of the defendant. Knowledge of the illicit nature of the controlled substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § F.S. 893.101(2) and (3), Fla....

...[misrepresentation]. [fraud]. [forgery]. [deception]. [subterfuge]. Affirmative defense: Lack of kKnowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...on area in plain view and in the presence of the defendant. 42  Knowledge of the illicit nature of the controlled substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla....

...was located, and the substance was located in a common area in plain view and in the presence of the defendant. Knowledge of the illicit nature of the controlled substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.§ 893.101(2) and (3), Fla....

...was located, and the substance was located in a common area in plain view and in the presence of the defendant. Knowledge of the illicit nature of the controlled substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla....

...was located, and the substance was located in a common area in plain view and in the presence of the defendant. Knowledge of the illicit nature of the controlled substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla....

...was located, and the substance was located in a common area in plain view and in the presence of the defendant. Knowledge of the illicit nature of the controlled substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla....

...76  12. The existence and scope of legitimate uses for the object in the community. 13. Expert testimony concerning its use. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...terprise. 12. The existence and scope of legitimate uses for the object in the community. 13. Expert testimony concerning its use. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...terprise. 12. The existence and scope of legitimate uses for the object in the community. 13. Expert testimony concerning its use. Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla....

...object and had the ability to control it if [he] [she] had joint control over the place where the object was located, and the object was located in a common area in plain view and in the presence of the defendant. Affirmative defense: Lack of knowledge of illicit nature. § 893.101(2) Fla. Stat....

...object and had the ability to control it if [he] [she] had joint control over the place where the object was located, and the object was located in a common area in plain view and in the presence of the defendant. Affirmative defense: Lack of knowledge of illicit nature. § 893.101(2) Fla. Stat....

...object and had the ability to control it if [he] [she] had joint control over the place where the object was located, and the object was located in a common area in plain view and in the presence of the defendant. Affirmative defense: Lack of knowledge of illicit nature. § 893.101(2) Fla. Stat....

...[Excluded from this definition is any device having communication capabilities which has been approved or issued by the department for investigative or institutional security purposes or for conducting other state business.] Affirmative defense: Lack of knowledge of illicit nature. § 893.101(2) Fla. Stat....

...1983) (listing three elements of constructive possession). At the charge conference, however, the trial court and parties discussed several variations on the jury instruction, and the court, over the defendants' objection, decided to omit the third element, based on section 893.101. In section 893.101(2), the legislature found that "knowledge of the illicit nature of a controlled substance is not an element of any offense under [chapter 893, Florida Statutes]." On appeal, Edison does not contest the omission of the third element fr...

...ffense and five years concurrent for the possession offense. Appellant appealed and thereafter filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) in which he argued that his sentences are unconstitutional because, by virtue of section 893.101, Florida Statutes, his offenses are “strict liability offenses” for which the maximum sentences that can be imposed consistent with due process are no more than one year in jail....

...if it was properly raised, the claim was without merit based upon Harris v. State, 932 So.2d 551 (Fla. 1st DCA 2006), rev. denied, 962 So.2d 336 (Fla.2007). Appellant presents this same argument on appeal, and he also argues for the first time that section 893.101 and his convictions violate due process for the same reasons that his sentences are unconstitutional....

...Appellant's counsel was also appellate counsel for the appellant in Harris . The initial brief in this case did not even mention Harris even though the trial court relied on that case in denying Appellant’s rule 3.800(b)(2) motion and the opinion in Harris rejected the argument that section 893.101 rendered the appellant’s convictions unconstitutional....

96 So.3d 412, 415 (Fla.2012) (discussing section 893.101, which was adopted in response to Scott v.

of the substance’s illicit nature. Fla. Stat. § 893.101(3). But it also allows a defendant to assert an

...ere there has not been a clear expression of legislative intent as to whether guilty knowledge is an element of a crime. But in response to Chicone and Scott v. State, 808 So.2d 166 (Fla.2002), the Florida legislature clearly expressed its intent in section 893.101, Florida Statutes, by stating that "knowledge of the illicit nature of a controlled substance" is not an element of an offense under chapter 893, and that instead lack of such knowledge is an affirmative defense....

...Petillo, Assistant Public Defender, West Palm Beach, for appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. Appellant, Stephen Jerome Tolbert, appeals his conviction for possession of cocaine under section 893.101, Florida Statutes (2003), arguing that a jury instruction failed to instruct the jury that knowledge of the illicit nature of the controlled substance is an element of the crime, therefore rendering section 893.101 unconstitutional. This court addressed the constitutionality of section 893.101 in Wright v....

...Accordingly, the exact nature of the substance must be proven if the State is prosecuting under the trafficking prong of § 893.1351(1), Florida Statutes. A special instruction will be required if the defense is that the defendant did not know of the illicit nature of the controlled substance. See § 893.101, Fla....

that, prior to the enactment of Fla. Stat. § 893.101 , the Florida Supreme Court had held that

...ad joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla....

...Timothy Edwards, in proper person. Pamela Jo Bondi, Attorney General, for appellee. Before SALTER and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge. PER CURIAM. Affirmed. Taylor v. State, 929 So.2d 665 (Fla. 3d DCA 2006) (rejecting claim of unconstitutionality of section 893.101, Florida Statutes (2003)).

...the essential and material elements of the crime charged and required to be proven by competent evidence." Scott v. State, 808 So.2d 166, 170 (Fla.2002) (quoting Gerds v. State, 64 So.2d 915, 916 (Fla.1953)), superseded on other grounds by statute, § 893.101, Fla....

...inion and substitutes the following opinion. Affirmed. See Smith v. State, 79 So.3d 127 (Fla. 3d DCA 2012); Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011); Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); see also Flagg v....

...February 15, 2012. Jerson Diaz-Muriell, in proper person. Pamela Jo Bondi, Attorney General, for appellee. Before CORTIÑAS, LAGOA, and EMAS, JJ. PER CURIAM. Affirmed. See Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); see also Little v....

...February 15, 2012. Shadrick Crump, in proper person. Pamela Jo Bondi, Attorney General, for appellee. Before CORTIÑAS, LAGOA, and EMAS, JJ. PER CURIAM. Affirmed. See Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); see also Little v....

...ing statements and circumstances other than mere location of the substance. . The State had to establish that the Appellant knew of the presence of the contraband on or about the premises and had the ability to maintain dominion and control over it. § 893.101(1)-(2), Fla....

...vidence, possession of twenty *591 grams or less of cannabis, and possession of drug paraphernalia. He argues that his conviction for possession of twenty grams or less of cannabis, and for possession of drug paraphernalia, should be vacated because section 893.101, Florida Statutes (2009) has been held to be facially unconstitutional in Shelton v....

...es. The jury returned a verdict of guilty on each of the counts. We do not credit Carreras' claim that the statute under which he was convicted is facially unconstitutional. To the contrary, this case is an illustration of the logic and propriety of section 893.101, Florida Statutes....

...Affirmative defense: Lack of knowledge of illicit nature. Give if applicable there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...Affirmative defense: Lack of knowledge of illicit nature. Give if applicable there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...it nature. Give if applicable there is evidence that the defendant 1) did not know of the presence of the - 14 - substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...(Defendant) had knowledge of the presence of the substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...cit nature. Give if applicable there is evidence that the defendant 1) did not know of the presence of the - 21 - substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...Affirmative defense: Lack of knowledge of illicit nature. Give if applicable there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...Affirmative defense: Lack of knowledge of illicit nature. Give if applicable there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...Affirmative defense: Lack of knowledge of illicit nature. Give if applicable there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...Affirmative defense: Lack of knowledge of illicit nature. Give if applicable there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...Affirmative defense: Lack of knowledge of illicit nature. Give if applicable there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...dant. Affirmative defense: Lack of knowledge of illicit nature. Give if there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...dant. Affirmative defense: Lack of knowledge of illicit nature. Give if there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...Affirmative defense: Lack of knowledge of illicit nature. Give if applicable there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...Affirmative defense: Lack of knowledge of illicit nature. Give if applicable there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...ndant. Affirmative defense: Lack of knowledge of illicit nature. Give if there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...dant. Affirmative defense: Lack of knowledge of illicit nature. Give if there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...dant. Affirmative defense: Lack of knowledge of illicit nature. Give if there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...dant. Affirmative defense: Lack of knowledge of illicit nature. Give if there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...dant. Affirmative defense: Lack of knowledge of illicit nature. Give if there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...ndant. Affirmative defense: Lack of knowledge of illicit nature. Give if there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...ndant. Affirmative defense: Lack of knowledge of illicit nature. Give if there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...dant. Affirmative defense: Lack of knowledge of illicit nature. Give if there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature . § 893.101(2) and (3), Fla....

...dge of illicit nature. Give if there is evidence that the defendant 1) did not know of the presence of the substance or - 122 - 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla....

...cit nature of the substance, and to add language that lack of knowledge of the illicit nature of the substance is an affirmative defense. In Adkins , a majority of the Court held that the guilty knowledge element, in light of the express language in section 893.101, Florida Statutes (2011), is limited to knowledge of the presence of the substance sold, purchased, manufactured, delivered, or brought into the state....

...Chicone mandated the trial court, upon appropriate request, to instruct the jury on the State’s burden to prove — as an element of possession — that the defendant knew the illicit nature of the substance possessed. Id. at 745-46 . The possession statute was amended by the enactment of section 893.101, Florida Statutes, on May 13, 2002, as a legislative reaction to the Chicone case. Thenceforth, “guilty knowledge” as an element of possession was eliminated; instead, lack of knowledge of the illicit nature of the substance became an affirmative defense. § 893.101(2)....

...sis for postconviction relief. Accordingly, we affirm the denial of Mack’s rule 3.850 motion. Affirmed. LaROSE and BLACK, JJ., Concur. . This court rejected a constitutional challenge to the amendment of section 893.13, Florida Statutes (2001), by section 893.101, Florida Statutes (2002), in Burnette v....

...Specifically, “constructive” possession, as the state claims in this case, requires, among other things, evidence that one knows of the presence and has dominion and control over the contraband. There was no evidence of any of this at the trial. See Jennings v. State, - So.3d - (Fla. 3d DCA 2013); see also § 893.101(1)-(2), Fla....

...We agree that O.S.’s adjudications for violating sections 893.13(6)(b) and 893.147(1) of the Florida Statutes (2011) must be affirmed. First, his argument that his adjudications for possession of marijuana and possession of drug paraphernalia should be reversed, because a lack of a mens rea requirement in section 893.101, Florida Statutes (2011), renders the possession statutes unconstitutional, has recently been rejected by the Florida Supreme Court....

...ERVIN, ALLEN and LEWIS, JJ., CONCUR. . The Legislature has now superseded Chi-cone by statute, declaring that knowledge of the illicit nature of the substance is no longer an element of the offenses of possession for offenses committed after May 13, 2002. § 893.101, Fla. Stat. (2002). However, appellant committed his offense prior to the effective date of section 893.101, and the statute cannot be applied to him retroactively....

nature of the contraband effective May 13, 2002. § 893.101, Fla. Stat. (2002); ch. 2002-258,- § 1, at 1848

legislature’s enactment (effective May 13, 2002) of section 893.101, Florida Statutes, which now requires an accused

appeal, she challenges the constitutionality of section 893.101, Florida Statutes (2009), based on the reasoning

decisions, the Florida Legislature in 2002 enacted section 893.101, Florida Statutes, which expressly provides

offenses in 2002. See Fla. Stat. § 893.101 .

2d 1289 (M.D.Fla.2011). Shelton holds that section 893.101, Florida Statutes, which provides that knowledge

appellant’s challenge to the constitutionality of section 893.101, Florida Statutes (2008), we affirm. See State

(holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional);

(holding that “section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional”;

(holding that section 893.13, as amended by section 893.101. Florida Statutes (2002), is constitutional);

knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat. Lack of knowledge

(holding that “section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional”;

section 893.13, Florida Statutes, as amended by section 893.101, Florida Statutes, is facially unconstitutional

date of the offense preceded the enactment of section 893.101, Florida Statutes, which provides that knowledge

(holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional);

substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla. Stat. Lack of knowledge

challenges the facial constitutionality of section 893.101, Florida Statutes (2003), amended to eliminate

See Ch. 2002-258, § 1, at 1848, Laws of Fla; § 893.101(2), Fla. Stat. (2018) (“[K]nowledge of the illicit

See Ch. 2002-258, § 1, at 1848, Laws of Fla; § 893.101(2), Fla. Stat. (2018) (“[K]nowledge of the illicit

2011) (holding “section 89.13, as amended by section 893.101, Florida Statutes (2002), is constitutional

171 (Fla. 2002), superseded on other grounds by § 893.101, Fla. Stat. (2002), as recognized in State v.

explained that, prior to the enactment of Fla. Stat. § 893.101, the Florida Supreme Court had held that the mens

(holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional);

(holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional);

knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat. Lack of knowledge

(holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional);

(holding that “section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional”;

(holding that “section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional”;

of trafficking in methamphetamine or heroin. § 893.101(2), Fla. Stat. Lack of such knowledge is, instead

2011), in which the federal court held that section 893.101 violates due process and is unconstitutional

(holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional);

an affirmative defense’”) (quoting Fla. Stat. § 893.101(2)). USCA11 Case: 21-13963 Date Filed: 06/10/2022

however, by the legislature’s en*790actment of section 893.101, Florida Statutes (2002), which states the

instant case. . The Legislature enacted section 893.101, Florida Statutes (2002), to eliminate the

of the four counts. Second, he argues that section 893.101, Florida Statutes (2002), is facially unconstitutional

13 So.3d 77, 80 (Fla. 1st DCA 2009) (citing § 893.101(1)-(2), Fla. Stat. (2006)); Links v. State, 927

(holding that “section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional”;

knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat. Lack of knowledge

nature of the controlled substance, citing section 893.101, Florida Statutes.

knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat. Lack of knowledge

600, 605–06 (1994)), superseded by statute, § 893.101, Fla. Stat. (2011), as recognized in State v.

is an affirmative defense to that crime. See § 893.101, Fla. Stat. (2011); Fla. Std. Jury Instr. (Crim

made aware of the holding in Chicone enacted section 893.101, Florida Statutes, by which it declared that

(2009), is facially unconstitutional in that Section 893.101, Florida Statutes (2009), eliminated mens rea

section 893.13, Florida Statutes, as amended by section 893.101, Florida Statutes, is facially unconstitutional

(holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional);

991, 996 (Fla. 4th DCA 2011) ("We hold that section 893.101 did not remove scienter from section 893.13

ofthe-substaneey-but-did not hmv-efits-itticit natura- § 893.101 (2) and (3), Fla. Stat. Lack of knowledge

(holding that “section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional”;

(holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional);

(holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional);

substance in his or her possession does not render section 893.101(1)(c)191. unconstitutionally vague. While