# Record and brief — Wall v. Florida

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1982
- **Citation:** 454 U.S. 1134

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0609%3A0. Public record. Not legal advice.