Record and brief — Wall v. Florida

juaweyes

eUOHOIDSUNs

——.

vii.ve me Court >

F L I ED

CT 2g 198i

od 1 - vd R2 ALEXANDER L. STEVAS,

CLERK

No.

—_—_—_—_—_—_—_—_—_—_—X——__

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

Jim WALL, III, WiLLtaM Grecory WALL,

AND DANNY RUSSELL,

Appellants,

v.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM

THE SUPREME COURT OF FLORIDA

JURISDICTIONAL STATEMENT

Joun F. YETTER

Post Office Box 10529

Tallahassee, Florida 32302

(904) 224-9037

Counsel for Appellants

Washington, O.C. + THIEL PRESS + (202) 638.4521

(1)

QUESTIONS PRESENTED

(1) Whether the Florida Drug Trafficking Law, which

upon conviction imposes mandatory minimum

sentences without parole, and which permits a

sentence reduction only if the defendant “provides

substantial assistance in the identification, arrest,

or conviction of any of his accomplices, accessories,

co-conspirators, or principals”, is unconstitutional

as a violation of the fifth amendment privilege

against self-incrimination.

(2) Whether the Florida Drug Trafficking Law, which

upon conviction requires the court to impose a

mandatory minimum sentence without parole unless

the state attorney, in his unreviewable discretion,

moves for a sentence reduction, is unconstitutional

as a violation of the due process clause of the

fourteenth amendment.

(%)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......ccccccccccccccces i

EES ocbdeccneccccecvess icceeedewe 1

nS bt bbb he eo 66000 0sebseonseteeves 2

STATUTES AND CONSTITUTIONAL

i Ce ss 6ecdee coetveseeeess 9

Dee GOO BOND GMD cc cccccccecevccsecoces 10

THE QUESTIONS PRESENTED ARE

DD 6c CeecGS6coeecteveresne seaeces 11

Deh che eCeesbecddccescboceasecocnves 20

APPENDICES:

A. Section 893.135 of the Florida Statutes............ la

B. Opinion in State v. Benitez, 395 So. 2d 514

PEED bet ces wbsoecccdcoddescavocoesees 4a

C. Opinion in State v. Yu, 400 So. 2d 762 (Fla.

Peed Grebeee cbcdendoncsdccdpeccesences 13a

D. Order of the Circuit Court for Escambia

County, Florida, declaring Section 893.135

of the Florida Statutes (1979) unconstitutional ..... 18a

E. Order of The Florida Supreme Court denying

Appellants’ Petition for Rehearing. ............-:+ 23a

F. Notice of Appeal to the United States Supreme

GR Cece hese ccc ecccccccceecccceeseses 24a

TABLE OF AUTHORITIES

Cases:

Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666,

DEM TEEN Dewees ccoccccecncecccoeess 14

Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034,

eR OD Ly PePeeerrerrirrerrirreres 7

Albertson v. Subversive Activities Control Board, 382

U.S. 70, 86 S. Ct. 194, 15 L. Ed. 2d 165 (1965) ..... 4,5,8

(ti)

Cases, continued: Page

Carmona v. Ward, 576 F.2d 405 (2d Cir. 1978) ........... 15

Connecticut Board of Pardons v. Dumschat, 49 U.S.LW.

SUED Gs ee Gs ED oc Se ews owe rec céccdecseace 18

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95

S. Ct. 1029, 43 L. Ed. 24 328 (1975).......... $,5,6,7, 8

Estelle v. Smith, _. U.S. ——., 101 S. Ct. 1866, 68

RB BARES GBR) cc ccc cccccccccccccscccccee 13

Flynt v. Ohio, _— U.S. ——, 101 S. Ct. 1958, 68

es BA BBG GUSEED ccwocscccccccccccecocve 2,5,7

Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36

L, BA. BAGES (IOTE) . wc cccccccccccccccscccccses 18

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99

S. Ct. 2100, 60 L. Ed. 24 668 (1979)... 2... ce eee eeee 18

Helstoski v. Meanor, 442 U.S. 500, 99 S. Ct. 2445, 61

BE, BOGS CIGD: cc ccc ccticccccccccecccceces 7

Lefkowitz v. Cunningham, 431 U.S. 801, 97 S. Ct.

2182, SS L. BA. B41 (1977). wer cccccccccccsccecs 14

Malloy v. Hogan, $78 U.S. 1, 84 S. Ct. 1489, 12

L. BA. BAGS (1964) 2 cc cc teccccccccccccces coe k@

Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697,

BOE. BE. BASED CGE) cccccccccccccscccessecce 15

Mempha v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19

L. BA, BE SOE (IOS) wc cccccccccccccccecccescese 17

Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33

L, Bd. BE GO6 (IOTE) 2 cc cccccccccccccccccces 17, 18

People v. Eason, 40 N.Y.2d 297, 386 N.Y.S.2d 673, 353

FE") 8) AA rrrrrererrreerr? cr 15,17

Roberts v. United States, 445 U.S. 552, 100 S. Ct.

1358, 63 L. Ed. 24 622 (1980) ... 1... eee eee ee eeee 12

Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18

L. Bd. 26 BOE (19067) onc cccccccccccccsccsccvece 19

State v. Benitez, 395 So. 24 514 (Fla. 1981) ....... 1,2, 11,16

State v. Yu, 400 So. 2d 762 (Fla. 1981) ............545- 2

(iv)

Cases, continued: Page

Thomas v. United States, 368 F.2d 941 (5th Cir.

SED bo ews cveccsecoccecsccsevesévcccvivces i2

United States v. Acosi:, 501 F.2d 1330 (5th Cir.

1974), dissenting opinion of Judge Gee, adopted

en banc, 509 F.2d 539 (5th Cir. 1975) ...........005- 12

United States v. Barnes, 604 F.2d 121 (2d Cir. 1979) ....... 13

United States v. Bradford, 645 F.2d 115 (2d Cir.

BREN See ae 13

United States v. Garcia, 544 F.2d 681 (3d Cir. 1976) ....... 12

United States v. Miller, 589 F.2d 1117 (lst Cir.

Ee ee we as 13

United States v. Ramos, 572 F.2d $60 (2d Cir. 1978) ....... 13

United States v. Rodriguez, 498 F.2d 302 (5th Cir.

Ce he a Bai aie ea Leek esas ed 12

United States v. Rogers, 504 F.2d 1079 (5th Cir.

DM Sider Stet. Leth Gud bas 6ckbewsdso« 12

United States v. Wright, 533 F.2d 214 (5th Cir. 1976)....... 12

Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63

So... . cuss cease sues bevewe 18

Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41

ce ws oe Ghee aceon weaes 18

Constitutional Provisions:

Fifth Amendment, United States Constitution ............. 9

Fourteenth Amendment, United States Constitution. ....... 10

Statutes:

I... wccscreescescesesenn 14

A. coos caeeeenaeuwer 14

ghd ccc esc escseutvuaveeee 2,8

Gade of Alsbema, GGOB-B1 ... 0. ccc ccc cccccvcces 15

Florida Statutes, § 893.185 .............-- 2,9, 10, 14, 15

(v)

Statutes, continued: Page

General Statutes of North Carolina, § 90-95(h)(5)......... 15

Louisiana Revised Statutes, § 40:967(G)(2) .........-+5- 15

New York Penal Law § 65.00(1)(b) ........- 0 eee eeeee 15

Ohio Code Annotated, § 3719.70(B) ........-.0-+ee00: 15

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

Jim WALL, III, WILLIAM GREGORY WALL,

AND DANNY RUSSELL,

Appellants,

v.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM

THE SUPREME COURT OF FLORIDA

JURISDICTIONAL STATEMENT

OPINIONS BELOW

Appellants were appellees in the Florida Supreme

Court. Their case was consolidated with a number of

others raising the same issues. The Florida Supreme

Court rendered two decisions, which in the aggregate

disposed of Appeliants’ case: State v. Benitez, 395

l

2

So. 2d 514 (Fla. 1981); and State v. Yu, 400 So. 2d

762 (Fla. 1981). The opinion in State v. Benitez dis-

posed of the issues raised in this appeal. Both decisions

are repriuted in the appendix hereto.

JURISDICTION

This case originated as a criminal prosecution against

Appellants in the Circuit Court for Escambia County,

Florida, charging a violation of Section 893.135 of the

Florida Statutes (1979), known as “he Drug Trafficking

Law. Appellants’ motion to dismiss, based inter alia

on the constitutional issues raised herein, was granted

by the trial court. The State appealed to the Florida

Supreme Court which reversed the trial court’s order in

a final opinion dated May 8, 1981. Appellants’ timely

motion for rehearing was denied on July 28, 1981.

Notice of Appeal to this Court was filed in the Florida

Supreme Court on August 17, 1981. Appellate jurisdic-

tion is conferred on this Court by 28 U.S.C. § 1257(2).

The decision of the Florida Supreme Court upheld

the Florida Drug Trafficking Law over federal constitu-

tional attack and is the final decision of the highest

court in Florida. The federal issues raised herein have

been finally decided against Appellants and all others in

the state. The decision of the Florida Supreme Court

reversed the trial court’s order dismissing the infor-

mation, however, and a trial on the merits therefore

remains.

A trial on the merits and imposition of sentence is

normally required for a judgment to be sufficiently final

to invoke this Court’s appellate jurisdiction. This rule

was most recently applied in Flynt v. Ohio, _— USS.

—, 101 S.Ct. 1958, 68 L.Ed. 2d 489 (1981), dis-

3

missing jurisdiction of petitioner’s interlocutory claim

that he was the victim of selective prosecution. As the

Flynt decision noted, however, numerous instances have

occurred where the Court has departed from the finality

rule. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95

S.Ct. 1029, 43 L.Ed. 2d 328 (1975), surveyed these

decisions and grouped them into four categories of

exceptions. As argued below, this appeal falls within

both the third and fourth exceptions recognied in Cox

Broadcasting.

Appellants contend that the Florida Drug Trafficking

Law violates the privilege against self-incrimination. The

Law imposes long mandatory sentences without possi-

bility of parole upon conviction. The defendant may

avoid such sentences, however, if he provides “‘substan-

tial assistance in the identification, arrest, or conviction

of any of his accomplices, accessories, co-conspirators,

or principals.” A defendant who has been tried on the

merits and convicted, therefore, faces the coercive choice

between cooperation with the prosecutor or a long

prison sentence. Further, as a practical matter, such a

defendant may not refuse cooperation and pursue appel-

late vindication of the privilege without fear of adverse

consequences should his appeal be unsuccessful. Under

the Drug Trafficking Law no sentencing reduction may

occur unless the prosecutor, in his complete discretion,

moves the court for a reduction. A defendant may

certainly apprehend that no such motion will be forth-

coming if he pursues an appeal rather than cooperating

immediately. More importantly, the opportunity of

cooperation in the identification and prosecution of

accomplices would not survive the period of years neces-

sary to complete the appellate process. Thus, the deci-

sion of noncooperation may not be revisited if the

appellate outcome is adverse to the defendant.

4

This interrelationship between the statutory scheme

and the issue of the applicability of the privilege demon-

strates that unless this Court decides the constitutional

issue in the present posture these Appellants, and maay

other unidentified defendants, may be forced to waive

their privilege against self-incrimination.

The Court held in Albertson v. Subversive Activities

Control Board, 382 U.S. 70, 86 S. Ct. 194, 15 L. Ed. 2d

165 (1965), that appellate review of self-incrimination

claims should not be deferred until after those asserting

the privilege faced the coercive choice between waiver

and possible criminal prosecution.

The SACB had ordered petitioners to register with it

as members of the Communist Party. Petitioners sought

review of the order in the court of appeals, attacking it

on self-incrimination grounds. The court of appeals held

the self-incrimination issue would not be ripe for appeal

until petitioners refused to register and were criminally

prosecuted for such failure. This Court rejected that

argument and held the orders to register were sufficiently

final for purposes of entertaining the self-incrimination

claim:

Petitioners must either register without a decision

on the merits of their privilege claims, or fail to

register and risk onerous and rapidly mounting

penalties while awaiting the Government’s pleasure

whether to initiate a prosecution against them. To

ask, in these circumstances, that petitioners await

such a prosecution for an adjudication of their

self-incrimination claims is, in effect, to contend

that they should be denied the protection of the

Fifth Amendment privilege intended to relieve

claimants of the necessity of making a choice

between incriminating themselves and risking serious °

%

5

punishments for refusing to do so. [Emphasis

added. ]

382 U.S. at 75-76.

It is this vital point which distinguishes this appeal

from Flynt v. Ohio, supra, and others of a similar nature.

If the Court delays appellate review until after conviction

and sentence then all accuseds must face the coercive

dilemma between self-incrimination and serious punish-

ment. The only opportunity which Appellants have to

seek federal vindication of their claimed privilege without

facing the coercive choice is this appeal.

Assuming Albertson v. Subversive Activities Control

Board correctly states the law, then this appeal fits

within the terms of either the third or fourth exceptions

described in Cox Broadcasting v. Cohn. The third

exception was stated as, “if the party seeking interim

review ultimately prevails on the merits, the federal issue

will be mooted; if he were to lose on the merits, how-

ever, the governing state law would not permit him again

to present his federal claims for review.’ 420 U.S. at

481. If Appellants in this case were to prevail on the

merits at trial the federal issues would be mooted because

of the acquittal. If Appellants were to lose on the merits

and be convicted, the effect of the Florida Drug Traffick-

ing Law would coerce cooperation and deter appellate

vindication of the privilege. This reality was explicitly

recognized in Albertson v. Subversive Activities Control

Board, supra. This case therefore falls within the third

exception.

The fourth exception in Cox Broadcasting Corp. v.

Cohn was where the issue has been finally decided in the

state courts, reversal of the state court on the federal

issue would be dispositive of that cause of action, and a

6

refusal to immediately review “might seriously crode

federal policy”. 420 U.S. at 482-483. Deferring appel-

late review until a prosecution under the Drug Trafficking

Law results in a conviction and sentence, followed by

appeal in the Florida courts, will cause a wholesale waiver

of the claimed privilege against self-incrimination by

those defendants coerced by the sentencing structure

of the statute. Further, Appellants have been charged

under the law and this is the only opportunity they will

have to protect their claimed privilege before they are

confronted with the coercive choice which the Court

recognized in Albertson should not be required as a

condition of “finality”. Refusal to immediately review,

therefore, not only “might seriously erode federal

policy” but would certainly do so if, in fact, the Florida

law violates the privilege. Since the other requirements

of the fourth exception are clearly met, this appeal falls

within its terms.

Cox Broadcasting Corp. v. Cohn, like the present

appeal, dealt with review of a state supreme court deci-

sion upholding on pre-trial motion the constitutionality

of a state law. A trial on the merits remained, in which

appellant could have prevailed, thus mooting the federal

issue. Nevertheless, this Court took jurisdiction because

the federal issue had been finally determined by the

highest state court, and a decision on the federal issue

would be dispositive of the cause of action. Further,

permitting the Georgia Supreme Court decision to stand

would “leave unanswered . . . an important question

of freedom of the press” under “‘a statute the constitu-

tionality of which is in serious doubt ....” 420 U.S. at

485-486.

As argued infra under The Questions Presented Are

Substantial, the constitutionality of the Florida Drug

7

Trafficking Law is in serious doubt. The merits of

Appellants’ claim should to some degree affect the

jurisdictional decision. Cox Broadcasting Corp. v. Cohn,

420 U.S. at 486, footnote 13. Therefore, unless the

Court perceives a principled reason for limiting Cox

Broadcasting to appeals presenting freedom of the press

issues, this appeal is governed by that decision.

Other decisions of this Court have entertained appeals,

although a trial on the merits remained, where necessary

to protect federal interests other than freedom of the

press. In the civil context, these decisions are cited and

discussed in Cox Broadcasting Corp. v. Cohn. Two

important criminal decisions not mentioned there are

Abney v. United States, 431 U.S. 651, 660-661, 97

S.Ct. 2034, 52 L. Ed. 2d 651 (1977) (“[T]he rights

conferred on a criminal accused by the Double Jeopardy

Clause would be significantly undermined if appellate

review of double jeopardy claims were postponed until

after conviction and sentence . .. .”); and Helstoski v.

Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L. Ed. 2d

30 (1979) (mandamus improper appellate remedy but

defendant could have appealed from trial court’s rejection

of his motion to dismiss based on the Speech and Debate

Clause since trial on the merits would have undermined

that right). Further, the Court in Cox Broadcasting

found the facts of that case to be within their fourth

exception, which was stated as a situation where failure

to review “might seriously erode federal policy”. (Em-

phasis added.) 420 U.S. at 483. Thus, Cox Broadcasting

expressly did not limit the fourth exception to cases

threatening freedom of the press.

Returning to Flynt v. Ohio, __ U.S. —_, 101 S. Ct.

1958, 68 L.Ed. 2d 989 (1981), the Court observed

there that if it accepted jurisdiction under the fourth

8

exception to Cox Broadcasting the exception would

swallow the rule. 101 S.Ct. at 1960. Petitioner Flynt

had moved to dismiss the prosecution claiming selective

and discriminatory prosecution in violation of the Equal

Protection Clause. The trial court granted the motion

but the Ohio Supreme Court reversed. This Court

properly found that immediate review was not necessary

to protect important federal interests. Flynt’s claim

of selective prosecution af*:cted only his case. Addi-

tionally, once the prosecution was initiated Flynt faced

no coercive dilemma threatening waiver of a constitu-

tional right.

Appellants assert that this appeal is unique in that

immediate review is necessary to protect against coercive

waiver of the privilege against self-incrimination, cer-

tainly an important federal policy. If this Court declines

review, the effect of the Florida Drug Trafficking Law

will be to coerce cooperation and to abandon appellate

remedies. This is the only opportunity Appellants will

have to present the issue to this Court before confronting

that coercive choice. If appellate review is delayed

numerous other defendants will be similarly coerced.

The teaching of Albertson v. Subversive Activities

Control Board, supra, is that appellate review should not

be deferred until after the coercive dilemma is posed,

since to do so would threaten the interests the privilege

is designed to protect. Finally, the Florida Drug Traffick-

ing Law presents serious self-incrimination problems on

the merits. The decision of the Florida Supreme Court

is therefore sufficiently final for purposes of 28 U.S.C.

§ 1257(2).

If the Court takes jurisdiction as to the self-incrimina-

tion question, it may also consider other federal issues

raised in the appeal. Cox Broadcasting Corp. v. Cohn,

9

420 U.S. 469, 487, footnote 14, 95 S.Ct. 1029, 43

L. Ed. 2d 328 (1975).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

[Section 893.135 of the Florida Statutes penalizes

the possession or distribution of certain amounts of

various controlled substances, including marijuana and

cocaine. The statute is printed in its entirety in the

appendix hereto. The subsection which is the subject of

this appeal provides that the severe mandatory minimum

sentences without parole may be reduced or suspended

only as follows: }

Section 893.135(3) of the Florida

Statutes (1979):

The state attorney may move the sentencing court

to reduce or suspend the sentence of any person

who is convicted of a violation of this section and

who provides substantial assistance in the identifi-

cation, arrest, or conviction of any of his accom-

plices, accessories, co-conspirators, or principals.

The arresting agency shall be given an opportunity

to be heard in aggravation or mitigation in reference

to any such motion. Upon good cause shown, the

motion may be filed and heard in camera. The

judge hearing the motion may reduce or suspend

the sentence if he finds that the defendant rendered

such substantial assistance.

Fifth Amendment, United States Constitution:

No person shall be . . . compelled in any criminal

case to be a witness against himself ... .

10

Fourteenth Amendment, United States Constitution:

[Njor shall any State deprive any person of

life, liberty, or property, without due process of

ae

STATEMENT OF THE CASE

Appellants were charged by information in the Circuit

Court for Escambia County, Florida, with three felonies.

The third count of the information alleged a violation of

Section 893.135(1)(b)3 of the Florida Statutes (1979),

known as the Florida Drug Trafficking Law, for posses-

sion of 400 grams or more of any mixture containing

cocaine. The sentence for this offense is a mandatory

minimum prison term of fifteen years without parole

unless the accused renders substantial assistance in the

prosecution of accomplices. Appellants moved to dismiss

this count of the information on numerous state and

federal grounds including those urged in this appeal.

The trial court sustained the motion and entered an

order declaring the statute unconstitutional, printed

in the appendix hereto. The state appealed this order

to the Florida Supreme Court which reversed the trial

court on all grounds. The Florida Supreme Court held,

inter alia, that the sentencing procedures of the Drug

Trafficking Law did not violate the privilege against

self-incrimination nor offend due process by permitting

the prosecution to exercise the sentencing power.

11

THE QUESTIONS PRESENTED

ARE SUBSTANTIAL

(1) Whether the Florida Drug Trafficking Law,

which upon conviction imposes mandatory

minimum sentences without parole, and

which permits a sentence reduction only if

the defendant “provides substantial assistance

in the identification, arrest, or conviction

of any of his accomplices, accessories, co-

conspirators, or principals”, is unconstitu-

tional as a violation of the Fifth Amendment

privilege against self-incrimination.

Under subsection (3) of the Florida Drug Trafficking

Law, a convicted defendant must receive a specified

mandatory sentence without possibility of parole. The

defendant may avoid such a sentence only by providing

“substantial assistance in the identification, arrest,

or conviction of any of his accomplices, accessories,

co-conspirators, or principals.” In such case, the manda-

tory sentence may be reduced or completely suspended.

On the face of it, therefore, the law imposes long sen-

tences as a coercive device to compel disclosures from

the accused. Further, unlike decisions discussed infra,

where refusal to cooperate with the prosecution was one

factor in the judge’s discretionary sentencing decision,

here the only factor affecting length of sentence is the

cooperation of the accused.

The Florida Supreme Court held that this sentencing

scheme did not violate the privilege against self-incrimina-

tion. State v. Benitez, 395 So. 2d 514, 519-520 (Fla.

1981), reprinted in the appendix hereto.

The applicability of the privilege against self-incrimina-

tion in the sentencing context was recently before this

12

Court in Roberts v. United States, 445 U.S. 552, 100

S.Ct. 1358, 63 L. Ed. 2d 622 (1980). In that case, the

trial court stated at the imposition of sentence that it

had considered the defendant’s failure to cooperate with

the prosecution. The Court held it was not improper,

under generally accepted principles of sentencing, to

consider lack of cooperation as bearing on the need

for rehabilitation. The petitioner also claimed, for

the first time on appeal, that judicial consideration

of the lack of cooperation violated his privilege against

self-incrimination. The Court responded that, “‘These

arguments would have merited serious consideration if

they had been presented properly to the sentencing

judge.” 445 U.S. at 559. The Court refused to consider

the claim on that basis.

The recognition in Roberts that the self-incrimination

claim would have merited serious consideration was based

on supporting decisions in the federal courts of appeal.

In United States v. Garcia, 544 F.2d 681, 684-686

(3d Cir. 1976), the Court squarely held that requiring

defendants to cooperate in the identification and prose-

cution of accomplices violated the privilege. The Fifth

Circuit has reached the same conclusion in a number

of decisions. United States v. Wright, 533 F.2d 214,

215-217 (5th Cir. 1976); United States v. Rogers, 504

F.2d 1079, 1084-1085 (5th Cir. 1974); United States

v. Acosta, 501 F.2d 1330, 1337-1338 (5th Cir. 1974),

dissenting opinion of Judge Gee, adopted en banc, 509

F.2d 539 (5th Cir. 1975).!

1See also, United States v. Rodriguez, 498 F.2d 302 (5th Cir.

1974); and Thomas v. United States, 368 F.2d 941 (5th Cir.

1966), finding a violation of the privilege against self-incrimination

where the trial court sentenced more harshly because the accused

refused to confess his guilt after conviction.

13

The Florida Supreme Court’s decision in this case

is in direct conflict with these decisions. Indeed, the

sentencing structure of the Florida Drug Trafficking

Law presents the self-incrimination issue in its most

pure form since under its terms the disclosures of the

accused are the only factors affecting sentencing lenity.

In the above federal decisions, on the other hand, non-

cooperation was just one factor in the whole complex

of variables affecting the length of sentence.?

Second, if the privilege against self-incrimination

applies in the sentencing context, then the Florida

Supreme Court’s decision is in direct conflict with a

number of this Court’s decisions determining the ap-

plicability and scope of the privilege. Just last term,

and after the Benitez decision was handed down, this

Court unequivocally held that the privilege applies at

sentencing. Estelle v. Smith, __ U.S. __, 101 S.Ct.

1866, 1972-1873, 68 L.Ed.2d 359 (1981). Given

that holding, it remains to be determined whether the

sentencing lenity promised by the Drug Trafficking Law

is sufficiently compulsive and whether the required

disclosures involve a sufficient risk of incrimination to

invoke the privilege. The decisions of this Court are

clear on both points.

2The First and Second Circuits have held that the sentencing

judge may state that he has taken into consideration the defend-

ant’s noncooperation so long as the judge gives consideration to

all factors bearing on the need for rehabilitation and does not

punish the accused for remaining silent. United States v. Bradford,

645 F.2d 115 (2d Cir. 1981); United States v. Barnes, 604 F.2d

121 (2d Cir. 1979); United States v. Miller, 589 F.2d 1117 (lst

Cir. 1978). A contrary result was reached, however, where non-

cooperation was the sole basis for enhanced punishment, United

States v. Ramos, 572 F.2d 360 (2d Cir. 1978). Hence, the Florida

Supreme Court's decision is also directly in conflict with this line

of authority.

14

The compulsion of the Drug Trafficking Law is the

imposition of mandatory sentences without parole of

up to twenty-five years in prison.’ If “substantial

assistance” is rendered, however, such sentence may

be reduced or totally suspended. These sentencing

differentials are obviously compelling, and this Court

has held that penalties of an economic nature signifi-

cantly less coercive than incarcerative sentences were

sufficient to trigger the privilege. Lefkowitz v. Cunning-

ham, 431 U.S. 801, 97 S.Ct. 2132, 53 L. Ed. 2d 1

(1977), and decisions cited therein.

Nor can there be any question but that the disclosures

compelled by the Drug Trafficking Law involve a suf-

ficient risk of incrimination to invoke the privilege. The

statute, for instance, requires the accused to identify

accomplices and co-conspirators. This type of disclosure

was held protected by the privilege in Malloy v. Hogan,

378 U.S. 1, 12-14, 84 S.Ct. 1489, 12 L. Ed. 2d 653

(1964), since the identified accomplice might have

information incriminating the defendant in other crimes.

Were this not sufficient, it is also clear that disclosures

made to state officials without immunity could be the

basis for federal prosecution, not only for drug violations

under Title 21 of the United States Code, but also for

related crimes such as the federal RICO offense, 18

U.S.C. §§ 1961-68. Abbate v. United States, 359

U.S. 187, 79 S.Ct. 666, 3 L. Ed. 2d 729 (1959). The

possibility of incrimination under the laws of a sepa-

rate sovereign is within the protection of the privilege.

3Appellants are charged under Section 893.135 (1)(b)(3) with

possession of more than 400 grams of “any mixture containing

cocaine”. If convicted, they will receive a mandatory minimum

prison term of fifteen years plus a $250,000 fine, unless they

render “substantial assistance” to the prosecution.

15

Marchetti v. United States, 390 U.S. 39, 44-48, 88

S.Ct. 697, 19 L. Ed. 2d 889 (1968).

A final consideration affecting the substantial impor-

tance of the self-incrimination issue is that a number

of other states have recently passed similar or identical

legislation which uses the sentencing power to compel

cooperation in the identification and prosecution of

accomplices.* Only one other state court decision has

been found discussing the constitutionality of such a

statute, People v. Eason, 40 N.Y.2d 297, 386 N.Y.S.2d

673, 353 N.E.2d 587 (1976), and no self-incrimination

argument was raised or discussed therein.5 This emerging

*Code of Alabama, § 20-2-81, enacted in 1980 [identical to

Fla. Stat. § 893.135 (3)]; Louisiana Revised Statutes, § 40:967

(G)(2), enacted in 1979 [virtually identical to Fla. Stat. § 893.135

(3), but no provision for in camera hearing]. New York Penal

Law § 65.00(1)(b) is a similar coercive provision built into the

sentencing structure: “The court . . . may sentence a

person to a period of probation upon conviction of a class A-III

felony if the prosecutor . . . recommends the . . . sentence .. .

upon the grounds that such person has or is providing material

assistance.” These provisions should be compared with two other

recent enactments: Ohio Revised Code Annotated, § 3719.70(B)

effective July 1, 1976: “When a person is convicted of any drug

abuse offense, the court shall, in determining whether to suspend

sentence or place the person on probation, take into consideration

whether such person has truthfully revealed all information within

his knowledge . . . such information shall include . . . the iden-

tity and whereabouts of accomplices, accessories, aiders, and

abettors . . .”; General Statutes of North Carolina, § 90-95(h)(5)

effective March 1, 1981: “The sentencing judge may . . . impose

less than the applicable minimum prison term . . . when such

person has, to the best of his knowledge, provided substantial

assistance in the identification, arrest or conviction of .. . co-

conspirators . . . if the sentencing judge enters in the record a

finding that the person sentenced has rendered such substantial

assistance.”

5The long mandatory prison terms provided in the New York

law were held not to violate the Crue! and Unusual Punishment

Clause in Carmona v. Ward, 576 F.2d 405 (2d Cir. 1978).

16

statutory pattern in other jurisdictions shows that the

issues raised here present a novel and nationally impor-

tant question of federal law which should be decided

by this Court. This is especially true where the existence

of such statutes undoubtedly operates on a daily basis

to coerce disclosures which may be protected by the

privilege against self-incrimination.

(2) Whether the Florida Drug Trafficking Law,

which upon conviction requires the court to

impose a mandatory minimum sentence

without parole unless the state attorney, in

his unreviewable discretion, moves for a

sentence reduction, is unconstitutional as a

violation of the due process clause of the

Fourteenth Amendment.

Under subsection (3) of the Florida Drug Trafficking

Law, the long mandatory sentences »therwise provided

for in the act must be imposed unless the prosecutor

moves the court for a sentencing reduction on the ground

that “substantial assistance” has been rendered. Nothing

in the law requires such a motion, however, and there

is no provision for judicial review of the prosecutor’s

discretionary decision not to make the motion. The

prosecutor therefore is vested with the discretionary

power to withhold any sentencing reduction from the

defendant, even if “substantial assistance” has in fact

been rendered.

The Florida Supreme Court held in State v. Benitez,

395 So. 2d 514, 519 (Fla. 1981), that this provision

did not unlawfully vest the sentencing power in the

prosecution since “The ultimate decision on sentencing

resides with the judge who must rule on the motion

for reduction or suspension of sentence.” The court

17

therefore found no constitutional objection in such a

procedure. The court, perhaps intentionally, overlooked

the statutory truth that the prosecution has no obligation

to make such a motion and the decision to do so is

totally within his discretion.®

This decision is in direct conflict with a number of

decisions of this Court which establish that where a

finding of fact must be made in the post-conviction

context and where the finding affects a “liberty interest”,

due process requires at least the opportunity for a hearing

before a neutral decision maker.

Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct.

2593, 33 L. Ed. 2d 484 (1972), is the landmark decision.

The Court there held a state procedure permitting revo-

cation of parole without a hearing and solely on the

written report of a parole officer to be a violation of

due process. The Court first said that Mempha v. Rhay,

389 US. 128, 88 S.Ct. 254, 19 L. Ed. 2d 336 (1967),

established that sentencing was part of the criminal

prosecution requiring the “full panoply of rights due a

defendant.” 408 U.S. at 480. Since subsection (3)

of the Drug Trafficking Law is expressly part of the

sentencing process, it is clear that “the full panoply of

rights” should apply. Whatever those rights may be,

however, it is further clear thai any procedural rights

required by Morrissey for a parole violation would at

a@ minimum be required for sentencing. The Court

then specified a number of constitutionally required

procedures for the parole revocation decision including

©The Florida Supreme Court's approach to this issue was

expressly adopted from People v. Eason, 40 N.Y.2d 297, 301,

386 N.Y.S.2d 673, 676, 353 N.E.2d 587, 589 (1976), which in

similar fashion overlooked the fact that sentencing reduction could

be granted only upon prosecutorial recommendation.

18

the opportunity for a hearing before a neutral and

detached hearing body. 408 U.S. at 489. The Court

further held that even the preliminary decision to seek

revocation should be made by “someone not divectly

involved in the case’”’ and specifically disqualified the

prisoner’s parole officer since he would not have “‘com-

-plete objectivity”. 408 U.S. at 485-486.

Morrissey v. Brewer has been followed and applied in

numerous other post-conviction settings. Vitek v. Jones,

445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980)

(involuntary transfer of a prisoner to a mental hospital);

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41

L. Ed. 2d 935 (1974) (forfeiture of a “good time” for

serious misbehavior); Gagnon v. Scarpelli, 411 U.S.

778, 93S. Ct. 1756, 36 L. Ed. 2d 656 (1973) (probation

revocation). See also, Greenholtz v. Nebraska Penal

Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L. Ed. 2d 668

(1979), approving the procedures provided for a parole

release decision and noting that somewhat less formality

would be required where the decision was standardless,

predictive of future behavior, and essentially intuitive,

as opposed to a factual determination. Accord: Con-

necticut Bd. of Pardons v. Dumschat, 49 U.S.LW. 4711

(U.S. S.Ct. 1981).

Certainly, the defendant’s interest in eligibility for a

substantially reduced or suspended sentence under the

Drug Trafficking Law far exceeds the importance of the

interests recognized in the above decisions. On the other

hand, the state has no legitimate interest in denying

the defendant at least the minimal protection of an

opportunity to present evidence of “substantial assist-

ance” to the trial judge.

19

Further, subsection (3) of the Drug Trafficking Law

in effect establishes a post-conviction finding of fact,

i.e., the rendering of ‘“‘substantial assistance”, which

substantially ameliorates the sentence. In Specht v.

Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L. Ed. 2d

326 (1967), the Court struck down a Colorado statute

providing for a judicial determination of the post-

conviction fact that the defendant was a habitual sex

offender, because .the accused had no right to a hearing

with the representation of counsel, no right to present

evidence or confront the evidence against him, and no

right to written findings providing for meaningful judicial

review. Here, not only are no such rights provided, but

the decision is in the first instance vested in the prose-

cutor, not a judge.

In sum, there is a significant body of law from this

Court holding that a sentencing decision may not consti-

tutionally be vested in the prosecution. Unfortunately,

as described supra at footnote 4, both Alabama and

Louisiana have enacted laws substantially identical to the

Florida provision. The issue is therefore of growing

national importance and should be decided by this Court.

20

CONCLUSION

For the above stated reasons, the questions presented

in this appeal are so substantial as to require plenary

consideration, and this Court should require briefs on

the merits and oral argument.

Respectfully submitted,

Joun F. YETTER

Post Office Box 10529

Tallahassee, Florida 32302

(904) 224-9037

Counsel for Appellants

APPENDIX

la

APPENDIX A

SECTION 893.135

of the

Florida Statutes (1979)

893.135 Trafficking; mandatory sentences; suspen-

sion or reduction of sentences.—

(1) Except as authorized in this chapter or in chapter

500:

(a) Any person who knowingly sells, manufactures,

delivers, or brings into this state, or who is knowingly in

actual or constructive possession of, in excess of 100

pounds of cannabis is guilty of a felony of the first

degree, which felony shall be known as “trafficking in

cannabis.” If the quantity of cannabis involved:

1. Is in excess of 100 pounds, but less than 2,000

pounds, such person shall be sentenced to a mandatory

minimum term of imprisonment of 3 calendar years and

to pay a fine of $25,000.

2. Is 2,000 pounds or more, but less than 10,000

pounds, such person shall be sentenced to a mandatory

minimum term of imprisonment of 5 calendar years and

to pay a fine of $50,000.

8. Is 10,000 pounds or more, such person shall be

sentenced to a mandatory minimum term of imprison-

ment of 15 calendar years and to pay a fine of $200,000.

(b) Any person who knowingly sells, manufactures,

delivers, or brings into this state, or who is knowingly in

actual or constructive possession of, 28 grams or more

of cocaine or of any mixture containing cocaine, as

described in s. 893.03(2)(a), is guilty of a felony of the

2a

first degree, which felony shall be known as “trafficking

in cocaine.” If the quantity involved:

1. Is 28 grams or more, but less than 200 grams, such

person shall be sentenced to a mandatory minimum term

of imprisonment of 3 calendar years and to pay a fine

of $50,000.

2. Is 200 grams or more, but less than 400 grams,

such person shall be sentenced to a mandatory minimum

term of imprisonment of 5 calendar years and to pay a

fine of $100,000.

3. Is 400 grams or more, such person shall be sen-

tenced to a mandatory minimum term of imprisonment

of 15 calendar years and to pay a fine of $250,000.

(c) Any person who knowingly sells, manufactures,

delivers, or brings into this state, ot who is knowingly

in actual or constructive possession of, 4 grams or more

of any morphine, opium, or any salt, isomer, or salt of

an isomer thereof, including heroin, as described in

s. 893.03(1)(b) or (2)(a), or 4 grams or more of any

mixture containing any such substance, is guilty of a

felony of the first degree, which felony shall be known

as “trafficking in illegal drugs.” If the quantity involved:

1. Is 4 grams or more, but less than 14 grams, such

person shall be sentenced to a mandatory minimum term

of imprisonment of 3 calendar years and to pay a fine

of $50,000.

2. Is 14 grams or more, but less than 28 grams, such

person shall be sentenced to a mandatory minimum term

of imprisonment of 10 calendar years and to pay a fine

of $100,000.

3. Is 28 grams or more, such person shall be sen-

tenced to a mandatory minimum term of imprisonment

of 25 calendar years and to pay a fine of $500,000.

3a

(2) Notwithstanding the provisions of s. 948.01, with

respect to any person who is found to have violated this

section, adjudication of guilt or imposition of sentence

shall not be suspended, deferred, or withheld, nor shall

such person be eligible for parole prior to serving the

mandatory minimum term of imprisonment prescribed

by this section.

(3) The state attorney may move the sentencing

court to reduce or suspend the sentence of any person

who is convicted of a violation of this section and who

provides substantial assistance in the identification,

arrest, or conviction of any of his accomplices, acces-

sories, co-conspirators, or principals. The arresting

agency shall be given an opportunity to be heard in aggra-

vation or mitigation in reference to any such motion.

Upon good cause shown, the motion may be filed and

heard in camera. The judge hearing the motion may

reduce or suspend the sentence if he finds that the

defendant rendered such substantial assistance.

4a

APPENDIX B

OPINION

in

State v. Benitez, 395 So. 2d 514 (Fla. 1981)

ENGLAND, Justice.

This case comes to us on direct appeal from a trial

court order determining that section 893.135, Florida

Statutes (1979)—Florida’s newly-enacted “drug traffick-

ing” statute—is unconstitutional.

After Carlos and Esperanza Benitez attempted to sell

one kilo of cocaine to undercover narcotics agents for

$44,000, they were charged by information with “‘traf-

ficking in cocaine” in violation of section 893.135. In

ruling on motions to dismiss the charges, the trial court

entered a lengthy order declaring section 893.135 to be

facially invalid on a multiplicity of grounds. The state

appeals that order, urging error in each of the trial

court’s rulings.

Section 893.135 is a unique response to a serious

and growing concern of the legislature regarding illegal

drug activities in the State of Florida. Subsection (1)

of the new law establishes severe mandatory minimum

sentences for trafficking in various types of illegal drugs.

Subsection (2) prevents the trial court from suspending,

deferring or withholding the adjudication of guilt or the

imposition of sentence on a person convicted under the

law, and it eliminates the defendant’s eligibility for

parole during the minimum mandatory sentence. Subsec-

tion (3) provides an “escape valve” from the statute’s

rigors, based on the initiative of the prosecuting attorney,

by permitting the court to reduce or suspend a sentence

if a convicted defendant is willing to cooperate with law

5a

enforcement authorities in the detection or apprehension

of others involved in drug trafficking.

Section 893.135 was enacted to assist law enforcement

authorities in the investigation and prosecution of illegal

drug trafficking at all levels of distribution, from the

importer-organizer down to the “pusher” on the street.

The harsh mandatory penalties of subsection (1), amelio-

rated by the prospect of leniency in subsection (3), were

clearly calculated’ to provide a strong incentive for drug

violators to cooperate with law enforcement authorities

and become informers. No one argres that the elimi-

nation of illegal drug traffic is not a beneficial and

worthwhile goal, or that the goals of this legislation are

not meritorious.

Nonetheless, in their zeal to combat the flow and

distribution of illegal drugs through this novel legislation,

legislators knowingly glossed over alleged constitutional

defects in the approach that was being developed. We in

the judiciary do not have that luxury. Indeed, the trial

judge’s extensive and detailed order exhibits the multiple,

serious difficulties which this statute poses under well-

established constitutional principles. We discern six

major challenges to the constitutionality of section

893.135, one directed at the mandatory penalties and

five directed at the escape valve in subsection (3). The

state also half-heartedly challenges the appellees’ standing

for the first time on this appeal. This last challenge being

the easiest to treat, we discuss it first.

1. Standing

The basic rule governing the standing of parties chal-

lenging statutory enactments was recently stated in

Sandstrom v. Leader, 370 So. 2d 3, 4 (Fla. 1979):

6a

Fundamental constitutional principles dictate that

one may not challenge those portions of an enact-

ment which do not adversely affect his personal or

property rights. . . . Such a personal stake in the

outcome of the controversy is necessary “to assure

that concrete adverseness which sharpens the presen-

tation of issues upon which the court so largely

depends for illumination of difficult constitutional

questions|[.]” (citations omitted).

The state argues that, because appellees have not yet

convicted, they have no personal stake in this

penalty-oriented statute.

To state the assertion is to demonstrate its absurdity.

A party subject to criminal prosecution clearly has a

sufficient personal stake in the penalty which the offense

carries. This is wholly unlike cases in which criminal

defendants have challenged portions of a statute which

have nothing to do with their prosecution. See State v.

Millington, 377 So. 2d 685 (Fla. 1979); State v. Champe,

373 So. 2d 874 (Fla. 1978).

2. Cruel and Unusual Punishment

Appellees argue that the mandatory minimum sen-

tences of section 893.135(1) violate the cruel and

unusual punishment clauses of the state' and federal?

constitutions. Relying on various death penalty decisions

of the United States Supreme Court,’ they first contend

lArt. 1, §17, Fla. Const.

2U.S. Const. amend. VIII.

3Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d

973 (1978); Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct.

2978, 49 L. Ed. 2d 944 (1976); Roberts v. Louisiana, 428 U.S.

$25, 96 S. Ct. 3001, 49 L. Ed. 24 974 (1976).

7a

that, the mandatory minimum sentences unconstitu-

tionally eliminate the exercise of discretion in sentencing.

This argument was rejected by this Court in McArthur

v. State, 351 So. 2d 972 (Fla. 1977), and warrants no

further discussion here.

Appellees also argue that the mandatory sentences in

section 893.135 constitute cruel and unusual punishment

since they are unnecessarily severe and disproportional

to the nature of the crime. This Court has consistently

upheld minimum mandatory sentences, regardless of

their severity, against constitutional attacks arguing cruel

and unusual punishment. See, e.g., McArthur v. State,

351 So. 2d 972 (Fla. 1977); Banks v. State, 342 So. 2d

469 (Fla. 1976); O’Donnell v. State, 326 So. 2d 4 (Fla.

1975). The dominant theme which runs through these

decisions is that the legislature, and not the judiciary,

determines maximum and minimum penalties for viola-

tions of the law. While it is often said that in an extreme

case—wherein the sentence was grossly disproportionate

to the severity of the crime—the legislature’s judgment

would run afoul of the constitutional prohibition, this

Court has never addressed such a situation in the context

of statutory sentencing minima.

The recent decision of the United States Supreme

Court in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct.

1133, 63 L.Ed. 2d 382 (1980), indicates that similar

considerations prevail under the federal constitution. In

that case, the Court held that a mandatory life sentence

imposed on the petitioner pursuant to a Texas recidivist

statute did not constitute cruel and unusual punishment

under the eighth amendment. The majority’s analysis

of this area noted that:

{t]his Court has on occasion stated that the

Eighth Amendment prohibits imposition of a

sentence which is grossly disproportionate to the

severity of the crime. ... In recent years this propo-

sition has appeared most frequently in opinions

dealing with the death penalty. . . . Because a

sentence of death differs in kind from any sentence

of imprisonment, no matter how long, our decisions

applying the prohibition of cruel and unusual

punishment to capital cases are of limited assistance

in deciding the constitutionality of the punishment

meted out to Rummel.

Outside the context of capital punishment,

successful challenges to the proportionality of

particular sentences have been exceedingly rare.

Id., 445 U.S. at 271, 100 S.Ct. at 1138 (citations

omitted). After analyzing one of these rare successful

challenges, Weems v. United States, 217 US. 349,

30 S.Ct. 544, 54 L.Ed. 793 (1910), the majority

concluded:

Given the unique nature of the punishments

considered in Weems and in the death-penalty cases,

one could argue without fear of contradiction by

any decision of this Court that for crimes con-

cededly classified and classifiable as felonies, that is,

as punishable by s.gnificant terms of imprisonment

in a state penitentiary, the length of the sentence

actually imposed is purely a matter of legislative

prerogative.

Id., 445 US. at 273, 100 S.Ct. at 1139 (footnote

omitted).

The penalties imposed by section 893.135 are certainly

severe, but they are by no means cruel and unusual in

light of their potential deterrent value and the seriousness

of the crime involved. See McArthur v. State; O’Donnell

v. State; accord, People v. Broadie, 37 N.Y.2d 100, 371

N.Y.S.2d 471, 332 N.E.2d 338, cert. denied, 423 U.S.

950, 96S. Ct. 372, 46 L. Ed. 2d 287 (1975).

9a

3. Due Process-Vagueness

Little discussion is needed concerning appellees’

suggestion that subsection (3) is impermissibly vague in

defining a convicted defendant who is eligible for lenient

treatment as “any person . . . who provides substantial

assistance in the identification, arrest, or conviction of

any of his accomplices, accessories, co-conspirators, or

principals.” Being a description of a post-conviction

form of plea bargaining rather than a definition of the

crime itself, the phrase “substantial assistance’ can

tolerate subjectivity to an extent which normally would

be impermissible for penal statutes. Cf. Linville v. State,

359 So. 2d 450 (Fla. 1978) (statutory definition of

proscribed activity he!d unconstitutionally vague). The

contested phrase, in any event, is susceptible of common

understanding in the context of the whole statute.

Schultz v. State, 361 So. 2d 416 (Fla. 1978). There is

no due process infirmity.

4. Equal Protection

Appellees’ suggestion that subsection (3) denies equal

protection of the law to convicted defendants who

cannot provide “substantial assistance” to law enforce-

ment officials is patently without merit. This legislation

manifestly passes the rational basis test. See Hamilton v.

State, 366 So. 2d 8 (Fla. 1978).

5. Separation of Powers

Two basic arguments by appellees are directed at

Florida’s constitutional separation of governmental

powers. Art. II, § 3, Fla. Const. First, they assert that

subsection (3) encroaches on the Court’s rulemaking

role, Art. V, § 2(a), Fla. Const., in that it conflicts with

10a

Rule 3.800(b), Rule 3.720(b), and Rule 3.171 of the

Florida Rules of Criminal Procedure. The statute differs

from these rules, of course, but it in no way so conflicts

with them as to offend the constitution.

Rule 3.800 (b) permits the reduction of legal sentences,

yet since it specifically excludes minimum mandatory

sentences from its operation, its procedures obviously are

not incompatible with section 893.135. Likewise, Rules

3.720(b) and 3.171 do not pose any obstacle to the

operation of section 893.135. Rule 3.720(b) provides

that at a sentencing hearing, the court shall “[e}ntertain

submissions and evidence by the parties which are rele-

vant to the sentence. . . .” Subsection (3) states that

“[t]he arresting agency shall be given an opportunity to

be heard in aggravation or mitigation in reference to any

[motion for reduction or suspension of sentence].” The

statute does not explicitly exclude the defendant from

submitting evidence in his behalf, and it does not offend

the statutory scheme to afford him that right. Finally,

applicable procedural safeguards in Rule 3.171 can

be afforded to defendants, to the extent they do not

conflict with the explicit langauge of subsection (3).

No infirmity of constitutional dimension attends the

omission of those that do.

Appellees’ second argument premised on the constitu-

tional separation of powers is that subsection (3) usurps

the sentencing function from the judiciary and assigns it

to the executive branch, since the benefits of subsection

(3) are triggered by the initiative of the state attorney.

Under the statute, the ultimate decision on sentencing

resides with the judge who must rule on the motion for

reduction or suspension of sentence. “So long as a

statute does not wrest from courts the final discretion

to impose sentence, it does not infringe upon the consti-

lla

tutional division of responsibilities.” People v. Eason,

40 N.Y.2d 297, 301, 386 N.Y.S.2d 673, 676, 353

N.E.2d 587, 589 (1976) (emphasis in original) (rejecting

a separation of powers attack on a similar provision in

New York’s drug laws).

6. Self-incrimination

Finally, the appellees argue that section 893.135

coerces a defendant into relinquishing his fifth amend-

ment privilege against self-incrimination by denying him

sentencing leniency unless he cooperates with the author-

ities. We reject this argument, primarily because it

depends on unwarranted assumptions about the nature

of the informer’s disclosures. Nothing in the statute

suggests that “substantial assistance” must incriminate

the defendant of crimes other than those for which he

has already been convicted (and for which no fifth

amendment privilege is obviously necessary). We ac-

knowledge the risk of prosecution in other jurisdictions.

Nonetheless, a defendant need not invoke subsection

(3), as nothing in the statute is compulsive. Putting a

defendant to a difficult choice is not necessarily for-

bidden by the fifth amendment. See, e.g., Corbitt v.

New Jersey, 439 U.S. 212, 218, 99 S.Ct. 492, 497, 58

L.Ed. 2d 466 (1978) (“[N]ot every burden on the

exercise of a constitutional right, and not every pressure

or encouragement to waive such a right, is invalid.”

(footnote omitted)); Bordenkircher v. Hayes, 434 US.

357, 98 S.Ct. 663, 54 L. Ed. 2d 604 (1978); McGautha

v. California, 402 U.S. 183, 91 S. Ct. 1454, 28 L. Ed. 2d

711 (1971). No constitutional deprivation results if a

defendant elects to reap the benefits of subsection (3).

With respect to those cases which say that the trial

courts may not enhance a sentence based on a defend-

12a

ant’s failure to cooperate with the authorities, see United

States v. Garcia, 544 F.2d 681 (3rd Cir. 1976); United

States v. Acosta, 501 F.2d 1330 (5th Cir. 1974) (Gee, J.,

dissenting), adopted en banc, 509 F.2d 539 (5th Cir.),

cert. denied, 423 US. 891, 96 S.Ct. 188, 46 L. Ed. 2d

122 (1975); United States v. Rogers, 504 F.2d 1079

(5th Cir. 1974), cert. denied, 422 U.S. 1042, 95 S.Ct.

2655, 45 L. Ed. 2d 693 (1975), we believe that Roberts

v. United States, 445 US. 552, 100 S.Ct. 1358, 63

L. Ed. 2d 622 (1980), went a long way toward resolving

this issue against appellees. The Court in Roberts con-

cluded that the district court properly considered the

defendant’s refusal to cooperate as one factor in imposing

consecutive sentences. Admittedly, a fifth amendment

claim was not properly raised in Roberts and “‘would

have merited serious consideration” if it had been. Jd.

at 559, 100 S.Ct. at 1364. We conclude, however, that

for fifth amendment purposes the situation in Roberts

is distinguishable from that here. A sentence reduction

obtained by a sentenced convict due to his cooperation

is not tantamount to the enhancement of a sentence

imposed on an unsentenced, but convicted defendant

as a result of his lack of cooperation. The former is no

different from a gratuitous sentence reduction offered

to one already incarcerated who, even without statutory

sanction, risks reincrimination in exchange for early

release benefits.

Our disposition of appellees’ challenges obviates the

need to consider the severability of subsection (3) from

the statute. We hold that section 893.135 is constitu-

tional. The order of the trial court is reversed, and the

case is remanded for further proceedings.

SUNDBERG, C.J., and ADKins, Boyp, OVERTON, ALDER-

MAN and McDONALD, JJ., concur.

State v. Yu, 400 So. 2d 762 (Fla. 1981)

ALDERMAN, Judge.

These cases are before us on direct appeal to review

orders of the trial courts granting the defendants’ motions

to dismiss and holding section 893.135, Florida Statutes

(1979), unconstitutional. We have jurisdiction pursuant

to article V, section 3(b)(1), Florida Constitution (1972).

We resolved all of the constitutional issues presented

by these appeals, with the exception of one, in State v.

Benitez, 395 So. 2d 514 (Fla. 1981), wherein we upheld

the validity of section 893.135. We, however, did not

address the issue of whether section 893.135(1)(b),

prohibiting the sale or possession of “28 grams or more

of cocaine or any mixture containing cocaine, as de-

scribed in s. 893.03(2)(a),” violates the due process and

equal protection provisions of the Florida and the federal

constitutions.

In the appealed orders, the trial courts held that penal-

izing possession of a certain amount of “any mixture

containing cocaine” without regard to the percentage of

cocaine in the mixture is arbitrary, unreasonable, and a

violation of due process and equal protection of the law.

We disagree and uphold section 893.135 against these

challenges.

We find convincing the rationale of the Supreme Court

of Illinois in People v. Mayberry, 63 Ill. 2d 1, 345

N.E.2d 97, cert. denied, 429 U.S. 828, 97 S. Ct. 87, 50

L. Ed. 2d 92 (1976). Therein, defendants challenged

l4a

the Illinois cannabis control act and the controlled

substances act which classified offenders by providing

that an offense becomes more severe as the weight of the

substance involved increases. The classifications of this

act were not based upon the amount of pure cannabis

or controlled substance involved but rather were based

upon the amount of the substance containing the can-

nabis or controlled substance. Upholding this act, the

Illinois Supreme Court, relying upon United States ex

rel. Daneff v. Henderson, 501 F.2d 1180 (2d Cir. 1974),

said:

The court noted in Daneff that dangerous drugs are

generally marketed in a diluted or innpure state. It

was therefore hela that it was not unreasonable or

irrational for a legislature to deal with the mixture

or compound rather than the pure drug. The

court went on to state that “[t]he State cannot be

expected to make gradations and differentiations

and draw distinctions and degrees so fine as to treat

all law violators with the precision of a computer.”

(501 F.2d 1180, 1184). We find the reasoning of

the court in Daneff persuasive. Our legislature may

have believed that any given amount of drug can be

distributed to a greater number of people and thus

have a greater potential to be harmful if it is mixed

with another substance. While the soundness of

that belief may be questionable, the determination

is one for the legislature to make, and we cannot

find that the classification schemes at issue have no

reasonable basis. Also, the defendants have not

demonstrated that a classification scheme based

upon the amount of the pure drug contained in a

given substance would be feasible. We therefore

conclude that the classification schemes are not

unconstitutional merely because they are based on

the amount of the “substance containing” the

15a

cannabis or controlled substance rather than upon

the pure cannabis or controlled substance.

345 N.E.2d at 101.

In Daneff, defendant challenged a New York drug

law on the basis that there was no rational basis for

the statutory scheme which assessed punishment on

possession of a quantity of “mixture” without regard

to the actual quantity of the dangerous drug present

in the mixture. Defendant argued that this sentencing

scheme violated equal protection and due process of the

law because it created unequal and irrational treatment

of offenders guilty of what he contended were identical

offenses. Under the New York law, possession of a given

amount of pure cocaine and the possession of the same

amount of cocaine mixed with various amounts of

dilutent were viewed as different offenses, the latter

carrying greater sanctions. The United States Court of

Appeals, Second Circuit, held that there was a rational

basis for the classifications drawn by the New York

legislature, and therefore the statute in question did not

violate either due process or equal protection of the laws.

It held that defendant’s argument in support of his claim

that the statute was irrational proved too much and ioo

little and explained:

Too much, in the sense that, by accepting appel-

lant’s own premise that narcotics such as heroin

and cocaine are generally marketed in mixtures

or compounds, it does not seem unreasonable or

irrational for a legislature to deal realistically with

the marketing of the mixture or compound rather

than the handling of the pure narcotic. Too little,

in the sense that while it may not be wise to let the

possessor of the pure or a purer product escape with

a lighter penalty than that going to the possessor of

the drug in its ordinary marketable form, it is not

l6a

necessary for a legislature to attempt to eradicate

all evil, but only part of it; as the Court said in

Pennsylvania v. Ashe, 302 U.S. 51, 55, 58S. Ct. 59,

60, 82 L. Ed. 43 (1937), ““The comparative gravity

of criminal offenses and whether their consequences

are more or less injurious are matters for [the

state’s] determination.”

501 F.2d at 1184. Recognizing that heroin and cocaine

at least are generally marketed in a diluted or impure

state, the court stated that the legislature’s rationale for

striking at the mixture or compound was evident.

We agree and find this rationale applicable to section

893.135(1)(b). The legislature has broad discretion in

determining necessary measures for the protection of

the public health, safety, and welfare, and we may not

substitute our judgment for that of the legislature as to

the wisdom or policy of a legislative act. Hamilton v.

State, 366 So. 2d 8 (Fla. 1978). Section 893.135(1)(b)

bears a reasonable relationship to the legitimate state

objective of protection of the public health, safety, and

welfare. The legislature reasonably could have concluded

that a mixture containing cocaine could be distributed

to a greater number of people than the same amount of

undiluted cocaine and thus could pose a greater potential

for harm to the public. This was within its prerogative

to decide, and it has not been shown that such decision

was irrational o1 unreasonable.

Accordingly, the orders of the trial courts are reversed

on the authority of State v. Benitez and on the basis of

our present holding that section 893.135(1)(b) is not

arbitrary and unreasonable and does not violate due

process and equal protection of the laws.

17a

It is so ordered.

SUNDBERG, C.J., and ADKINS, BoYyD, OVERTON, ENGLAND

and McDONALD, JJ., concur.

18a

APPENDIX D

ORDER

of the

Circuit Court for Escambia County, Florida,

declaring Section 893.135 of the Florida

Statutes (1979) unconstitutional

IN THE

CIRCUIT COURT

IN AND FOR ESCAMBIA COUNTY, FLORIDA

Case No. 79-1839

STATE OF FLORIDA,

Plaintiff,

v.

JIM WALL, III, WILLIAM GREGORY

WALL and DANNY RUSSELL,

Defendants.

ORDER DECLARING STATUTE

UNCONSTITUTIONAL

THIS MATTER coming on to be heard upon the Defend-

ants’ Motion to dismiss Count I of the Information, the

Court having heard from the parties and being otherwise

fully advised in the premises, it is

ORDERED, ADJUDGED AND DECREED that Section 893.153

(3), Florida Statutes, is declared invalid and unconstitu-

tional for the following reasons:

19a

1. Said subsection violates the due process clause of

Article I, Section 9, of the Constitution of the State of

Florida, and the Fifth Amendment of the Constitution

of the United States in that the language used therein is

unconstitutionally vague, indefinite and uncertain,

to-wit:

A. The Statute provides that the state attorney

“may” move the sentencing court to reduce or suspend

sentence without any standards or guidelines for the

exercise of such discretion;

B. The state attorney’s motion must be made only

in conjunction with the defendant who provides “sub-

stantial assistance”’ in the investigation and prosecution

of others.

2. According to the above-referenced subsection, the

possibility of mitigation of the minimum, mandatory

sentencing provisions are available only to defendants

who have accomplices, accessories, co-conspirators or

principals in the crime and only when the state attorney

requires, and the defendant is capable of rendering

“substantial assistance”’ in their identification, arrest and

conviction, all in violation of Article I, Section 2, 4 and

9, of the Constitution of the State of Florida and the

Fifth and Fourteenth Amendment of the Constitution

of the United States.

3. Subsection (3) of 893.135, Florida Statutes, pro-

vides mandatory, minimum sentence without parole, or

other mitigation unless the state attorney initiates a

motion to reduce or suspend a sentence. Said provision

violates basic constitutional principles of division and

separation of the executive, legislative and judicial

powers and responsibilities and effects an unwarranted

encroachment into the judicial sentencing function by |

20a

delegating to the executive branch (the state attorney’s

office) the ultimate sentencing function which constitu-

tionally must vest exclusively in the judicial branch.

It further invades the court’s inherent rule-making

powers by purporting to prescribe who may petition the

court and under what circumstances. Subsection (3) of

893.135, Florida Statutes, is, therefore, contrary to the

guaranty of a republican form of government as decreed

by Article II, Section 3, and Article V, Section 1, of the

Constitution of the State of Florida.

4. Section 893.135(1)(b), Florida Statutes, prohibits

sale or possession of a “‘mixture” of cocaine when com-

bined with any other agent or substance regardless of

the total amount of actual cocaine. Any chemically

detectable amount of cocaine, when mixed with 28

grams or more of any substance, would fall within the

purview of this Statute. There is no legislative history

indicating nor has the court found any rational basis for

defining cocaine as “‘any mixture containing cocaine”’ in

that it was agreed by the state and the defendant that a

quantitative analysis can be made to determine the actual

amount of cocaine present in combination with any other

substance. The Statute, thus, provides the identical

treatment under the mandatory sentencing provision of

persons possessing 28 grams of pure cocaine and those

possessing a mere scintilla of cocaine mixed with 28

grams of any other substance. For this reason, the

Statute offends the equal protection and due process

clauses of the Constitutions of the United States and the

State of Florida.

5. The Court has reviewed the various transcripts

reflecting the legislative history of Section 893.135,

Florida Statutes, and has determined that the legislature

clearly did not intend for subsection (3) of Section

2la

893.135, Florida Statutes, relating to relief for defend-

ants that provide “substantial assistance” to be severable

from the portions of the Statute imposing severe manda-

tory sentences. It is clear that the legislature intended for

defendants convicted thereunder to seek the “substantial

assistance” provision avoiding mandatory incarceration.

If the “substantial assistance”’ provision is invalidated as

being unconstitutional, the impact requiring every single

defendant to be incarcerated for a mandatory, minimum

of fifteen years would greatly exceed the anticipation of

the legislature in passing a law. Accordingly, the Court

finds that:

A. The Statute as a whole would not have been

enacted without the inclusion of subsection (3);

B. Without the provisions contained in subsection

(3), application of the Statute would create a result never

contemplated by the legislature;

C. The provision of the act contained in subsection

(3) was a clear and obvious inducement to the enactment

of the other provisions of Section 893.135, Florida

Statutes, specifically subsection (1) and (2) thereof.

6. The Court, therefore, finds that subsection (3) is

not severable and that the unconstitutionality of that

subsection invades and renders the entire Statute uncon-

stitutional. Based upon all of the foregoing, the Court

hereby grants the Defendants Motion to dismiss Count I

of the Information and declares Section 893.135, Florida

Statutes (1979), to be unconstitutional.

DONE AND ORDERED in Chambers at Pensacola, Escam-

bia County, Florida, this 14th day of December, 1979.

/s/ William Frye, Ill

Circuit Judge

22a

Copies to:

Barry Z. Rhodes, Esquire

Assistant State Attorney

Robert G. Kerrigan, Esquire

Attorney for Defendant

23a

APPENDIX E

ORDER

of the

Florida Supreme Court denying Appellants’

Petition for Rehearing

SUPREME COURT OF FLORIDA

Tuesday, July 28, 1981

Case No. 58,674

Circuit Court No. 79-1639 (C)

(Escambia)

STATE OF FLORIDA,

Appellant,

v.

JIM WALL, III, WILLIAM GREGORY

WALL, and DANNY RUSSELL,

Appellees.

Upon consideration of the Petition for Rehearing filed

in the above styled cause by the attorney for Appellees,

IT IS ORDERED that said Petition be and the same is

hereby denied.

A True Copy TC

TEST: cc: Hon. Ernie Lee Magaha, Clerk

Sid J. White Hon. William F rye, III, Judge

Clerk, Supreme Court Robert G. Kerrigan, Esquire

Miguel A. Olivella, Jr., i

By: /s/ Tanya Carroll eS. Sn ne

Deputy Clerk

24a

APPENDIX F

NOTICE OF APPEAL

to the |

United States Supreme Court

IN THE

SUPREME COURT OF FLORIDA

Case No. 58,674

Circuit Court No. 79-1639 (C)

(Escambia)

STATE OF FLORIDA,

Appellant,

v.

JIM WALL, III, WILLIAM GREGORY

WALL, and DANNY RUSSELL,

Appellees.

NOTICE OF APPEAL TO THE

SUPREME COURT OF THE

UNITED STATES

Notice is hereby given that Jim Wall, II, William

Gregory Wall, and Danny Russell, Appellees in the above

captioned case, hereby appeal to the United States

Supreme Court from the final order of the Supreme

Court of Florida reversing the order of the Circuit Court

of Escambia County declaring Section 893.135 of the

Florida Statutes (1979) unconstitutional. The final

order of the Supreme Court of Florida denying Appel-

25a °

lees’ Petition for Rehearing was rendered on Tuesday,

July 28, 1981.

This appeal is taken pursuant to 28 U.S.C. § 1257 (2).

/s/ Robert G. Kerrigan

Kerrigan, Estess & Rankin

224 East Government Street

Pensacola, Florida 32501

(904) 432-2317

Attorneys for Appellees

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been

furnished to Honorable Jim Smith, Attorney General,

State of Florida, The Capitol, Tallahassee, Florida, by

U.S. Mail on this 17th day of August, 1981.

/s/ Robert G. Kerrigan

Kerrigan, Estess & Rankin

224 East Government Street

Pensacola, Florida 32501

(904) 432-2317

Attorneys for Appellees