KORY BRETT DONALDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant challenged the constitutionality of Florida's drug statute for lacking a mens rea requirement, claiming he needed to preserve the issue for federal review. The court affirmed, holding that the constitutional challenge was not preserved at trial and that the federal issue was meritless because the Eleventh Circuit had reversed the cited Shelton decision and the Supreme Court denied certiorari.
The court held that Appellant failed to preserve the constitutional challenge because it was not raised at trial, only the motion to suppress was preserved for appeal. Additionally, the constitutional challenge is without merit because the Eleventh Circuit reversed the Shelton decision relied upon and the Supreme Court denied certiorari, eliminating any basis to preserve the issue for federal review.
[1] A constitutional challenge to a statute is not preserved for appellate review if the issue was not raised in the trial court.
[2] A defendant who pleads guilty after a motion to suppress evidence is denied may reserve the right to appeal only the denial of the motion to suppress.
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Join FLexlaw to unlock all legal intelligence“this claim was not raised at the trial level”
Establishes that Appellant did not preserve the constitutional challenge at trial, which is a prerequisite for appellate review
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Join FLexlaw to unlock all legal intelligenceAppellant moved to suppress evidence recovered after police entered his home. The trial court denied the motion to suppress. Appellant then accepted a…
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Appellant, through counsel, has attempted to challenge the constitutionality of Florida’s drug statute; specifically, section 893.13, Florida Statutes. His counsel maintains the statute is unconstitutional because it does not contain a mens rea requirement. Counsel acknowledges our supreme court has rejected this exact argument, but she maintains the appeal is to preserve the claim “for federal review purposes.” See Shelton v. Sec’y, Dep’t of Corr., 802 F.Supp.2d 1289 (M.D.Fla.2011); State v. Adkins, 96 So.3d 412 (Fla.2012).
As an initial matter, though, this claim was not raised at the trial level. Below, Appellant moved to suppress evidence recovered after police entered into his home. After the trial court denied his motion, Appellant accepted a plea; specifically reserving the right to appeal one issue: the denial of the motion to suppress. Appellant’s notice of appeal lists only the motion to suppress, and his statement of judicial acts to be reviewed lists solely the motion to suppress as well. Nowhere does the record reflect Appellant advanced his constitutional argument to the trial court. He has, therefore, not preserved the issue for appeal. Harrell v. State, 894 So.2d 935, 940 (Fla.2005).
Moreover, however, both Appellant’s counsel and the State fail to recognize that the Eleventh Circuit Court of Appeals reversed the trial court’s Shelton decision in August 2012. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012). And, each also fails to recognize the United States Supreme Court then denied certio-rari in April 2013. Shelton v. Crews, — U.S.-, 133 S.Ct. 1856, 185 L.Ed.2d 822 (2013). Thus, there is nothing to preserve “for federal review purposes.” See Shelton v. Sec’y, Dep’t of Corr., 802 F.Supp.2d 1289 (M.D.Fla.2011), rev’d, 691 F.3d 1348 (11th Cir.2012), cert. denied sub nom., Shelton v. Crews, — U.S.-, 133 S.Ct. 1856, 185 L.Ed.2d 822 (2013).
Accordingly, Appellant failed to preserve the issue he argues before this Court. And, to the extent we were to entertain the argument, it is clearly without merit. We AFFIRM Appellant’s judgment and sentence.
WOLF, VAN NORTWICK, and CLARK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Adkins, 96 So. 3d 412 (Fla. 2012)
- Harrell v. State, 894 So. 2d 935 (Fla. 2005)
- Mackle Vincent Shelton v. Sec'y, Dep't OF Corr., Attorney Gen., State of Fla., 691 F.3d 1348 (11th Cir. 2012)
- Alexander v. Boone Hosp. Ctr., 569 U.S. 917 (U.S. 2013)
- Castleberry v. Florida., 569 U.S. 923 (U.S. 2013)
- Dixon v. Florida., 569 U.S. 924 (U.S. 2013)