Arrestable Offenses / Crimes under Fla. Stat. 847.011
S847.011 1a - OBSCENE MATERIAL-SELL - SELLS LENDS DISTRIBUTES SUBSQ VIOLATION - F: T
S847.011 1a - OBSCENE MATERIAL-POSSESS - POSSESS OBSCENE MATERIAL TO SELL PREV CONV - F: T
S847.011 1a - OBSCENE MATERIAL-DISTRIB - LEND/DISTRIB OBSCENE MATERIAL SUBSQ VIOL - F: T
S847.011 5a1 - OBSCENE MATERIAL-DISTRIB - TRANSMIT DISTR GIVE CHILDLIKE SEX DOLL 2ND SUB - F: S
S847.011 5a1 - OBSCENE MATERIAL-SELL - SELL LEND ADVERTISE CHILDLIKE SEX DOLL 2ND SUB - F: S
S847.011 5a1 - OBSCENE MATERIAL-DISTRIB - TRANSMIT DISTRIB GIVE AWAY CHILDLIKE SEX DOLL - F: T
S847.011 5a1 - OBSCENE MATERIAL-SELL - SELL LEND ADVERTISE CHILDLIKE SEX DOLL - F: T
S847.011 5b1 - OBSCENE MATERIAL-POSSESS - POSSESS CHILD-LIKE SEX DOLL 2ND SUBSEQ - F: T
CopyCited 38 times | Published | Supreme Court of Florida
...Supreme Court of Florida. September 19, 1973. *352 Paul Shimek, Jr., Pensacola, for appellant. Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee. DEKLE, Justice. We deal here with the "old" Florida obscenity statute, § 847.011, which continues as law. [1] Two movie films publicly exhibited by appellant at his Navy Point Adult Theater in Pensacola, titled "He and She" and "Sex Family Robinson on the Farm" were found by a jury to be obscene in violation *353 of Florida's 1967 obscenity statute, § 847.011, which prohibits the sale, distribution, showing or possession of "any obscene, lewd, lascivious, filthy, indecent, sadistic or masochistic book, magazine ... photograph, motion picture film... ." There is no further amplification of these words in the statute [2] except (11) [3] setting forth the Roth test. [4] Inasmuch as § 847.011(8)(b) injunctive proceedings were not invoked in this cause, the injunctive portion of the statute is of course not involved here. [5] Appellant's offense occurred on May 5, 1971, under the earlier statute in question, § 847.011 to which our holding must of course be restricted, despite the recent June 21, 25, 1973, "cluster" of eight U.S....
...[6] Appellant launches the following missiles of constitutional attack: (1) unlawful search and seizure precluding admission of the films into evidence; (2) non-obscenity of the films in question as a matter of law; (3) unconstitutionality of Fla. Stat. § 847.011 because: a) the statute does not provide for an adversary judicial hearing on obscenity prior to issuance of the warrant of seizure; b) national and not contemporary community standards apply; c) neither the statute, court rule nor practice and procedure in the courts provides for a prompt and final determination of the alleged obscenity. SEIZURE WAS PROPER Factually, appellant was tried and convicted by a jury based upon an indictment for violation of Fla. Stat. § 847.011, F.S.A....
...returned by the grand jury against appellant. Motion *354 to suppress was denied. During the trial the films were actually shown to the jury, then testimony was taken. The trial judge in acting upon appellant's motions expressly declared Fla. Stat. § 847.011, F.S.A., constitutional and this direct appeal followed....
...nduct, and the test to be utilized at trial, is that which prevailed under the applicable statute as amplified by authoritative construction published at the time of the offense. [13] NEW TEST PROSPECTIVE ONLY As to the constitutional sufficiency of § 847.011 per se regarding no specific elaboration on the words obscene, lewd and lascivious, we must take the constitutional view that although there is a new test of obscenity in the aforementioned recent federal opinions, it does not avail us ins...
...State,
255 So.2d 675 (Fla. 1971), cert. den.
406 U.S. 976,
92 S.Ct. 2427,
32 L.Ed.2d 676, catalogues the earlier cases, although it was not decided until December 8, 1971, subsequent to the offense here. SUFFICIENT NOTICE TO OFFENDER We hold the language of Fla. Stat. §
847.011 F.S.A., as heretofore authoritatively construed to be sufficient to meet the requirements of notice to the person of ordinary understanding, of the conduct proscribed as obscene, lewd and lascivious such as that here involved....
...ivious, then there can be little doubt that the same and worse sexual conduct depicted upon film between those not husband and wife and in the presence of anyone who wishes to see it is quite obviously lewd and lascivious in violation of the statute § 847.011 and any person of ordinary understanding would know it. We so hold. We do not need to go further in our consideration of earlier judicial determinations in Florida with respect to public notice of the offense proscribed by § 847.011....
...State (filed Sept. 11, 1973)
286 So.2d 616, confirms this principle and there affirms a 1971 conviction on the basis of prior 1970 Collins. Mitchum v. State,
251 So.2d 298 (Fla.App. 1st 1971), also constitutes a very explicit construction of the statute §
847.011 which leaves no doubt to any potential offender of the proscribed conduct....
...457, holding to the contrary. See also Davison v. State,
251 So.2d 841 (Fla. 1971), and United States v. Groner,
479 F.2d 577 (5th Cir.1973). The able trial judge was correct in applying local community standards in the trial which is the standard set forth in §
847.011(11)....
...he incidental benefits flowing from pending litigation and injunctions in the federal courts at the time, which allowed his continued showing of the prohibited films and the resulting mounting profits. We therefore conclude: 1) The obscenity statute § 847.011 is valid and meets constitutional requirements....
...[2] The next sections of the obscenity statutes, §§
847.012 and
847.013, as to persons under 17 years of age, give explicit definitions to such words and terms which are used there by the Legislature in the 1969 adoption of those sections. [3] Fla. Stat. §
847.011(11) (formerly (10)): "For the purposes of this section, the test of whether or not material is obscene is: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." [4] Roth v....
CopyCited 35 times | Published | District Court, M.D. Florida | 1978 U.S. Dist. LEXIS 17663
...ce could be applied in such a manner as to be indistinguishable in its effect from the Florida statutory scheme allowing a state or City attorney to enjoin the operation of certain premises for certain purposes under a nuisance theory. See Fla.Stat. § 847.011(8) (1977)....
...one a full-blown judicial determination of their obscenity vel non. Mitchem v. State ex rel. Schaub,
250 So.2d 883 (Fla.1971). In Mitchem, the Florida trial court had found that a certain adult bookstore constituted a public nuisance under Fla.Stat. §
847.011(8) and had permanently enjoined its entrepreneurs from further operation of the premises....
CopyCited 33 times | Published | Supreme Court of Florida | 2001 WL 228446
...t rooms" to market the photographs and videotapes and to sell a videotape. Doe did not allege that Russell transmitted photographs or images of her son via the AOL service. In her six-count complaint, Doe claimed that AOL violated criminal statutes, section
847.011 [1] and section
847.0135(2), Florida Statutes (1993)....
...lation that encourages and protects the involvement of ISPs as silent partners in criminal enterprises for profit. Confident that Congress did not intend such an incongruous result, I respectfully dissent. PARIENTE and QUINCE, JJ., concur. NOTES [1] Section 847.011(1)(a), Florida Statutes (1993), provides in relevant part: Any person who knowingly ......
CopyCited 27 times | Published | Supreme Court of Florida | 1990 WL 154236
...Ogden, Donald B. Verrilli and Bruce J. Ennis of Jenner & Block, Washington, D.C., amici curiae for PHE, Inc. and Ultra Corp. McDONALD, Justice. We have for review State v. Long,
544 So.2d 219 (Fla. 2d DCA 1989), which expressly declared constitutional section
847.011, Florida Statutes (1985 & Supp....
...The state charged Stall, Long, and several other persons with violating the Florida Racketeer Influenced and Corrupt Organization (RICO) Act, sections
895.01-.06, Florida Statutes (1985), predicated on fortyeight alleged violations of Florida's obscenity statute, section
847.011, Florida Statutes *258 (1985), [1] and the amended version of the statute that took effect in 1986. [2] The state also charged each defendant individually with one or more counts of violating section
847.011....
...The violations allegedly occurred through the showing, sale, distribution, and rental of allegedly obscene writings and tapes, and objects allegedly intended for obscene purposes, between September 12, 1985 and March 7, 1987. Acting upon the petitioners' pretrial motion, the trial court dismissed the information and declared section 847.011 unconstitutional....
...s not extend to the petitioners. If an obscenity statute is constitutional, RICO convictions based on that statute can be upheld. Fort Wayne Books, Inc. v. Indiana,
489 U.S. 46,
109 S.Ct. 916,
103 L.Ed.2d 34 (1989). This Court has consistently found section
847.011 to be constitutional....
...The 1985 statute contained a similar standard: For the purpose of this section, the test of whether or not material is obscene is: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. § 847.011(11), Fla. Stat. (1985). Although the 1986 statute refers only to "obscene" material and then defines that term, the 1985 statute contained the term "obscene, lewd, lascivious, filthy, indecent, sadistic, or masochistic" material. § 847.011(1)(a) (1985)....
...ndividual." Florida Board of Bar Examiners re Applicant,
443 So.2d 71, 74 (Fla. 1983). There is no indication that the drafters of article I, section 23 meant to broaden the right of privacy as it relates to obscene materials or that the validity of section
847.011 is affected by the privacy provision....
...ective on those who do not necessarily share nor desire to share that perspective, at least within the confines of their private lives, and when no harm has been proven. The language of Florida's obscenity statute emphasizes this point. According to section 847.011(11) (1985), gauging "obscenity" requires the application of "contemporary community standards" to determine whether "the dominant theme of the material taken as a whole appeals to prurient interest" (emphasis added)....
...And all Floridians are subject to the concern that the compact discs, videos, recordings, or books they have obtained for use or resale might send them to state prison as racketeers. This is unacceptable in a free society. VI. Conclusion For the foregoing reasons, I would hold that both the 1985 and 1986 versions of section 847.011, Florida Statutes, are overbroad *275 and facially unconstitutional because they sweep too far into areas protected by Florida's right to be let alone and the right of free speech....
...(2) A person who knowingly has in his possession, custody, or control any obscene [material] ..., without intent to sell, lend, give away, distribute, transmit, show, transmute, or advertise the same, is guilty of a misdemeanor of the second degree... . § 847.011, Fla....
...(2) A person who knowingly has in his possession, custody, or control any obscene [material] ..., without intent to sell, lend, give away, distribute, transmit, show, transmute, or advertise the same, is guilty of a misdemeanor of the second degree... . § 847.011, Fla....
...Const., provides: Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law. [4] To the extent that § 847.011(2), Fla....
CopyCited 23 times | Published | Supreme Court of Florida | 2 A.L.R. 4th 1325
...87,
86 S.Ct. 211,
15 L.Ed.2d 176 (1965). Recent developments, including the subsequent history of Jones v. State, supra , militate in favor of reconsideration of the constitutionality of Section 847.05, as authoritatively interpreted in the Jones case. Section
847.011, Florida Statutes (1975), another statute in the same chapter as the statute under which appellant was convicted, embodies a definition of obscenity more explicit than the "indecent or obscene" standard at issue here. Section
847.011 formerly proscribed possession of, and certain conduct in connection with, "obscene, lewd, lascivious, filthy, indecent, immoral, sadistic or masochistic" materials. When Section
847.011 was adjudged deficient in the trial court, the state appealed. In an extended opinion, this Court excised the word "immoral" from Section
847.011 and pronounced all constitutional maladies remedied. State v. Reese,
222 So.2d 732 (Fla. 1969). Apparently inspired by the decision in State v. Reese, supra , the legislature reenacted Section
847.011, omitting the word "immoral", and giving the statute its present day form. As presently worded, Section
847.011 was upheld by this Court in a line of cases [3] culminating with Bucolo v....
...State,
283 So.2d 351 (Fla. 1973); State v. Papp,
298 So.2d 374 (Fla. 1974); State ex rel. Gerstein v. Walrick Theatre Corp.,
298 So.2d 406 (Fla. 1974). Subsequent to Bucolo, in Fontana v. State,
316 So.2d 543 (Fla. 1975), we altered our construction of Section
847.011, Florida Statutes (1975) in light of Miller v....
...In accepting this contention, the Court left no doubt that its unanimous decision in Bucolo v. Florida, supra, rested on the ground that this Court had erroneously upheld a conviction for constitutionally protected activity, which fell within the purview of Section 847.011, Florida Statutes (1975)....
CopyCited 23 times | Published | Supreme Court of Florida
...Gen., and Reeves Bowen, Asst. Atty. Gen., for appellant. David Linn, of White, Phipps, Linn, Furnell & Mahorner, Clearwater, for appellee. ROBERTS, Acting Chief Justice. Appellant was charged in two separate informations with possession of obscene material contrary to § 847.011(2), Fla. Stat. 1967, F.S.A. Both informations were dismissed by the trial judge upon motion of the appellant charging that § 847.011, Fla....
...The State has appealed directly to this court from the order of dismissal entered in each case, and the cases have been consolidated for the purpose of appeal. We have jurisdiction of the appeals under § 4(2), Article V, Florida Constitution, F.S.A. Sec. 847.011, Fla....
...1414,
18 L.Ed.2d 515 (1967), on the same ground as in Memoirs, supra, in voting for reversal of an obscenity conviction. The appellee contends that these decisions have so modified the Roth test as to amount to an abandonment thereof, and that Subsection (10) of §
847.011 is therefore "unconstitutional." It appears to us, however, that a determination of the question of whether or not the Roth test has been abrogated by the United States Supreme Court will have no effect whatsoever on the question of the validity of the statute, §
847.011(2), which the appellee was charged with violating....
...There can be no doubt that prosecutions under an obscenity statute may be initiated and tried under a court-adopted standard of obscenity as well as under a legislatively prescribed one. See Roth v. United States, supra. The addition of Subsection (10) to § 847.011 was merely a legislative declaration *735 of a judicial rule that had already been adopted by the courts of this state....
...) It would seem, therefore, that a conviction based on the Roth test as "elaborated" in Memoirs would or, at least, should have a good chance of standing up under a due process attack made on it in the United States Supreme Court; and Subsection (10) of § 847.011, supra, can and should be interpreted, and the words of our obscenity statute applied, in the light of the clarification or "elaboration" of the Roth test made in Memoirs, supra....
...While Subsection (10) applies, in terms, only to "obscene" material, the Supreme Court held in Roth that the words "lewd, lascivious, filthy or indecent" are equivalent to "obscene", so that this definitive provision of our obscenity statute would apply equally to these words. Sec. 847.011 also denounces "immoral, sadistic, or masochistic" material....
...had it known that this word would be deleted. Accordingly, the word "immoral" is severable and should be deleted. The appellee has also asked this court to recede from its decision in Tracey v. State, Fla. 1961,
130 So.2d 605, in which we held that §
847.011(2) denouncing the possession of obscene material without intent to sell, etc....
...It is well settled, however, that the courts are not concerned with the wisdom or motives of the Legislature in enacting a law; our concern is with the validity of the enactment when measured by organic requirements. In view of the pronouncements of the Supreme Court of the United States referred to above, it is clear that § 847.011 (2) is not susceptible to the attack on the ground of unconstitutional vagueness here made upon it....
...Georgia, supra, he must do so during a trial where the facts can be fully developed and submitted to a jury under proper charge of the trial court, but on its face the Statute is not void. For the reasons stated, we hold that the word "immoral" should be deleted from the Statute and that the remainder of § 847.011, Florida Statutes, F.S.A., should be held valid as against the attack here made upon it, so the judgment under review is Reversed and remanded for further proceedings not inconsistent with this opinion....
...octrine of stare decisis before it can be stated with clarion *738 clarity that a given act or circumstance falls within or without the ambit of constitutionality. Thus, when viewed in light of the Roth case, the meaning of the words of the statute, Section 847.011, such as obscene, lewd, lascivious, etc., do fall within the understanding of ordinary men....
CopyCited 23 times | Published | Supreme Court of Florida
...Chapter 831, relating to forgery and counterfeiting. 18. Chapter 832, relating to issuance of worthless checks and drafts. 19. Chapter 837, relating to perjury. 20. Chapter 838, relating to bribery and misuse of public office. 21. Chapter 843, relating to obstruction of justice. 22. Section 847.011, s....
CopyCited 20 times | Published | Supreme Court of Florida
...enjoined from selling obscene or pornographic materials, and permanently enjoined from further operation or maintenance of their business so as to annoy the community. Our jurisdiction vests by virtue of a ruling by the Circuit Court that Fla. Stat. § 847.011, F.S.A., is constitutional....
...inuation of this type of business at the Adult Book and Movie Store premises on the ground that as operated the Store constituted a public nuisance. This was followed on October 17 by a Motion for a Temporary Restraining Order filed under Fla. Stat. § 847.011, F.S.A....
...On March 3, 1970, the Permanent Injunctions were entered: one prohibited appellants from selling that which was obscene; the other permanently enjoined the operation of the Store as a nuisance. Appellants now challenge the proceedings below on a number of points relating to the constitutionality of Fla. Stat. § 847.011, F.S.A., generally, certain aspects of the proceedings, and the validity of the injunctions issued by the Circuit Court....
...Thirty-Seven (37) Photographs,
402 U.S. 363,
91 S.Ct. 1400,
28 L.Ed.2d 822 (1971). In the instant case, however, the State urged the use of a constitutionally inadequate standard for the determination of obscenity. The State built its presentation around Fla. Stat. §
847.011(10), F.S.A., as worded....
...[2] The appellants accepted a stipulation that the State's witnesses would all testify that the materials in the Store were obscene under the above standard, but appellants protested that this was an improper standard and they, of course, were right. Fla. Stat. § 847.011(10), F.S.A., was an obscenity test taken from Roth v....
...United States [decided with Albert v. California],
354 U.S. 476,
77 S.Ct. 1304,
1 L.Ed.2d 1498 (1957). Subsequently, the Roth test underwent elaboration in ensuing obscenity cases decided by the United States Supreme Court. In State v. Reese, supra , Fla. Stat. §
847.011(10), F.S.A., came under attack as constitutionally defective since not reflective of the Roth test's revision....
...Atty. Gen. of Com. of Massachusetts,
383 U.S. 413,
86 S.Ct. 975,
16 L.Ed.2d 1 (1966)] would or, at least, should have a good chance of standing up under a due process attack made on it in the United States Supreme Court; and Subsection (10) of §
847.011, supra, can and should be interpreted, and the words of our obscenity statute applied, in the light of the clarification or `elaboration' of the Roth test made in Memoirs, supra." The standards asserted as proper by the State and accepted by the trial court below are those of Roth without more. The proper standards, as contained in Memoirs, and as must be read into Fla. Stat. §
847.011(10), F.S.A., are that: "Three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts con...
...f materials as follows: "ORDERED AND ADJUDGED that the Respondents, Matthew Rocks and Bob Mitchem, cease and desist from selling, offering for sale or causing to be sold or offered for sale obscene or pornographic publications in violation of F.S.A. 847.011 * * *." The 14th Amendment of the United States Constitution requires that regulation of obscenity conform to procedures that will insure against the curtailment of constitutionally protected expression or publication....
...51,
85 S.Ct. 734,
13 L.Ed.2d 649 (1965). See New Rivieria Arts Theatre v. State ex rel. Davis, 219 Tenn. 652, 412 S.W.2d 890 (1967). In Kingsley Books, Inc., supra , a case involving a New York obscenity injunction statute akin to portions of Fla. Stat. §
847.011(7), F.S.A., the injunction proceeding affirmed by the United States Supreme Court was initiated by a complaint charging that a particular named obscene publication was displayed....
...In reaching our conclusion that the proceedings below were constitutionally defective, and that the injunctions issued must be dissolved, this Court intimates no judgment as to the status of the materials involved herein. The injunctions are dissolved; the Circuit Court's ruling on the validity of Fla. Stat. § 847.011, F.S.A., is affirmed; and this cause is remanded for further proceedings consistent with this opinion....
...written; that this material which has been presented in the way of evidence and which has been described in the testimony of the witnesses and the proffer, the stipulation between the parties, is such as is prohibited by the statute." [1] Fla. Stat. § 847.011(10), F.S.A., which our opinion upholds....
CopyCited 19 times | Published | Supreme Court of Florida
...ed to enforce such acts until an authoritative opinion on their constitutionality has been rendered by this Court. In a Dade County case, State v. Walvick Theatre Corp., et al., No. 73-22063, Circuit Judge Grossman recently held that Florida Statute 847.011, another of the state's obscenity statutes, could not be used to enjoin the movie "The Devil in Miss Jones" because criminal prosecution as well as the injunction proceeding had been instituted against the theater....
...judicial notice of the fact that five other cases involving the same entitled film, "THE DEVIL IN MISS JONES," but with different corporate and individual defendants are presently the subject of litigation in this Circuit Court under Florida Statute 847.011 [F.S.A.]. A determination either for or against the obscenity vel non of the film in any one of these cases is not binding on any other Court under Florida Statute 847.011 [F.S.A.] nor is it conclusive as to any party other than those who are proper parties to that litigation....
...unsophisticated. Some obscenity regulation system having a degree of national acceptance as a viable system needs to be evolved, otherwise we will continue to have an uncoordinated and diffused mess. In Florida a modified version of Florida Statute 847.011, incorporating the Miller and Paris Adult Theatre criteria, and eliminating the criminal sanctions, but retaining the civil proceedings for confiscation and injunction, might possibly satisfy First Amendment and due process rights if it is restricted in its application to non-consenting *405 adults and juveniles....
CopyCited 17 times | Published | District Court, M.D. Florida | 1979 U.S. Dist. LEXIS 12322
...Id. This case is before the Court in an entirely different posture. The plaintiff Keller has testified, and the City does not deny, that within the last five years he has sustained a criminal conviction under the Florida obscenity statute, Fla.Stat. § 847.011 (1978)....
...sed on the distributor's track record on prior occasions that the materials will actually be obscene. The Florida Supreme Court, in fact, reached *1145 precisely this conclusion in the case that offers the controlling interpretation of Fla. Stat. § 847.011(8) (1978), the Florida "obscene nuisance" statute....
CopyCited 17 times | Published | Florida 3rd District Court of Appeal
...isposition of the property. The question involved is one of proper exercise of jurisdiction." [11] Durant and Carlisle were decided under Section
812.061, Florida Statutes (1975) (authorizing the return of stolen property to the rightful owner), and Section
847.011, Florida Statutes (1973) (authorizing the return of seized non-obscene materials), respectively....
CopyCited 12 times | Published | Court of Appeals for the Eleventh Circuit | 20 Media L. Rep. (BNA) 1114, 1992 U.S. App. LEXIS 9592, 1992 WL 79721
...s appeal, appellants Luke Records, Inc., Luther Campbell, Mark Ross, David Hobbs, and Charles Wongwon seek reversal of the district court’s declaratory judgment that the musical recording “As Nasty As They Wanna Be” is obscene under Fla. Stat. § 847.011 and the United States Constitution, contending that the district court misapplied the test for determining obscenity....
CopyCited 12 times | Published | Supreme Court of Florida
...Demers of the Law Offices of Robert W. Pope, St. Petersburg, for appellant. Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee. HATCHETT, Justice. Appellant was charged with five violations of Florida's obscenity statute, Section 847.011, Florida Statutes, in that he knowingly sold or offered for sale certain magazines containing obscene, lewd, lascivious, filthy, indecent, sadistic, or masochistic material. Appellant moved to dismiss the charges on the ground that Section 847.011, Florida Statutes, is unconstitutional....
...ounty standard. Davison v. State,
288 So.2d 483 (Fla. 1973). This formulation permits maximum protection of materials acceptable in cosmopolitan areas while not forcing more conservative areas to accept public depiction of conduct they find obscene. Section
847.011, Florida Statutes, viewed in light of the judicial definitions above, penalizes no more than that which may be constitutionally proscribed....
...stitution and Article I, Section 3 of the Florida Constitution is wholly without merit. The fact that religious leaders of the community encouraged the prosecution and/or appeared as witnesses for the state is irrelevant. Appellant's contention that Section 847.011, Florida Statutes, is unconstitutional by virtue of the fact that it provides for a penalty of imprisonment for up to one year and a $1,000 fine in violation of the Cruel and Unusual Punishment provisions of the Eighth and Fourteenth Amendments to the United States Constitution is also without merit....
...dment rights under the United States Constitution. First Amendment rights should not vary from county to county, nor should an identical set of facts violate the criminal laws in one county and be permissible in another. The prosecution was based on Section 847.011, Florida Statutes, prohibiting certain acts in connection with obscene material....
...reversible error. The judgment of conviction should be reversed. ENGLAND, Justice, dissenting. Based on appellant's second motion to dismiss the information against him which alleged, among several other contentions, the constitutional infirmity of Section 847.011, the Hamilton County Court ruled: "This cause came before the Court for hearing on March 20, 1975, upon Defendant's Second Motion to Dismiss, and the Court having considered the same, together with agreement of Counsel thereon, it is...
...[1] The trial judge simply applied recent precedents which were binding on him. In fact, appellant's brief to us contains this acknowledgement: "This Court has rendered a number of decisions upholding the constitutional efficacy of Florida Statute 847.011....
CopyCited 10 times | Published | Florida 4th District Court of Appeal
...This case originated with an information filed on May 20, 1970 in the Criminal Court of Record for Orange County, Florida by which the petitioner, Balint Papp, was charged with the possession of an obscene magazine with knowledge of the nature of the magazine and the intention to distribute, in violation of F.S. § 847.011(1) (a), F.S....
...As to the first point, it would appear to us that when judged by the governing precedent at the time of the conviction, the trial court correctly decided both as a matter of fact and as a matter of law that the *602 magazine was obscene. The statute under which the petitioner was charged, § 847.011(1)(a), F.S....
...1969,
224 So.2d 706, 709 and citations therein set forth. When the magazine involved in the present case is gauged by the foregoing criteria, there can be no question that a jury or judge sitting as trier of fact could lawfully find the same to be obscene within the confines of §
847.011, F.S....
...hich portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political or scientific value." Papp has not raised, either in this court or in the Circuit Court, the constitutionality of § 847.011, F.S....
...nd that Papp has been sentenced to spend one year in prison by reason of his conviction) should be taken into account by this court on the principle of fundamental error. See Sanford v. Rubin, Fla. 1970,
237 So.2d 134, 137. It is apparent to us that §
847.011, F.S....
...California, supra. Nor does it appear from our research that at the time of the offense with which Papp was charged, the statute had *603 been authoritatively construed in such manner as to provide by judicial pronouncement the necessary specificity. The statute (§ 847.011, F.S....
CopyCited 9 times | Published | District Court, S.D. Florida | 3 Media L. Rep. (BNA) 1501, 1977 U.S. Dist. LEXIS 13430
...These actions, consolidated for hearings by the Court upon Motions for Preliminary Injunctions, arise from the efforts of the Broward County Sheriff's Department and the City of Fort Lauderdale Police Department, their respective officers, agents, servants and employees to enforce the Florida obscenity law, Florida Statutes 847.011, prohibiting the sale or offer for sale of certain allegedly obscene materials including books and films....
...s. Plaintiffs, P.A.B., Inc., et al., (Case No. 77-6322-Civ-SMA) also seek to enjoin state court proceedings presently pending against various employees of Plaintiffs arrested under search and arrest warrants for alleged violations of Florida Statute 847.011. Said Plaintiffs also attack F.S. 847.011 as unconstitutional, both facially and as applied, under Miller v....
...Askew, Governor of the State of Florida, by and through the office of the Florida Attorney General moved for leave to intervene pursuant to Rule 24(b) Federal Rules of Civil Procedure in order to assert defenses relating to the constitutionality of Florida Statute 847.011 and said motion was granted....
...jurisdiction of this Court to be invoked. This finding is made without regard and in no way related to or *943 dependent upon the pendency of any state criminal proceedings and/or any alleged charge of invalidity and unconstitutionality of Fla.Stat. 847.011....
...s announced by the United States Supreme Court in Miller. See Rhodes v. State,
283 So.2d 351 (Fla. 1973); Johnson v. State,
351 So.2d 10 (Fla. decided June 9, 1977). Rhodes and Johnson resolve any doubt as to the "authoritative construction" of Sec.
847.011, F.S., reaffirming that the statute must be applied in strict adherence to the ruling set down in Miller, supra. Indeed, the Plaintiffs in Paragraph 55 of their Complaint (Case No. 77-6322) and Plaintiffs in Paragraph 25 of their Complaint (Case No. 77-6360) recognize Sec.
847.011, F.S., as applied by the courts of Florida, is specifically within the constitutional standards set forth in Miller, supra....
...en subsequently construed by the Illinois supreme court to incorporate the Miller standards. Ward v. Illinois,
431 U.S. 767,
97 S.Ct. 2085,
52 L.Ed.2d 738 (1977). Thus, the Plaintiffs' assessment of the Florida Supreme Court's interpretation of Sec.
847.011, F.S., as legislative action and therefore a nullity is patently erroneous. Plaintiffs' contention that the obscenity statute is being applied in an unconstitutional manner is also without merit. The fact that Sec.
847.011(1)(a), F.S., does not expressly define what an "article or instrument of indecent use" is, though prohibiting the possession of such an item, does not render the statute unconstitutionally vague....
...This is a matter of state statutory construction which under the principles enunciated in the Younger progeny of cases, is recognized as a matter properly asserted in the state trial court proceedings. Thereupon, this Court holds and declares Fla. Statute 847.011 to be facially constitutional and valid....
...duties so long as those duties are performed in accordance with law and do not become an unreasonable restraint against Plaintiffs' businesses calculated to cause severe economic losses. The public interest will not be disserved because Fla. Statute 847.011 remains in full force and effect and that law can be enforced in any manner that due process permits....
CopyCited 9 times | Published | Court of Appeals for the Eleventh Circuit | 1983 U.S. App. LEXIS 15137
...icensee from exhibiting, showing, selling, lending, or transmitting any motion picture film(s), book(s), magazine(s), video tape(s) or other material that has been found to be obscene, lewd, lascivious, filthy or indecent pursuant to Florida Statute 847.011, as written or construed, after said material(s) has undergone an adversary judicial hearing as required by law....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 1997 WL 4632
...us or false." Mozo,
632 So.2d at 634. The supreme court considered the application of article I, section 23 to the sale or purchase of obscene materials in Stall. There the state charged several defendants with violating Florida's obscenity statute, section
847.011, Florida Statutes (1985), by the "showing, sale, distribution, and rental of allegedly obscene writings and tapes and objects allegedly intended for obscene purposes." Id....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal
...ial, taken as a whole, appeals to the prurient interest, that is to say, arouses lascivious or lustful thoughts. Roth v. United States, supra [
354 U.S. 476,
77 S.Ct. 1304,
1 L.Ed.2d 1498]; Rachleff v. Mahon, supra [Fla.App.,
124 So.2d 878]; see also §
847.011, supra....
CopyCited 8 times | Published | Florida 1st District Court of Appeal
...ith the feeding. The more it is pandered to, the more insatiable its craving for something yet more vicious in taste. * * *" United States v. Harmon,
45 F. 414, 418 (D.C.Kan. 1891). The third point raised by appellants assails the obscenity statute, Section
847.011, Florida Statutes, F.S.A., as unconstitutional and therefore unenforceable....
...which the instant case is distinguishable from Mitchem et al. v. State ex rel. Schaub, supra. First, the Schaub case was reversed because in holding the materials there involved to be obscene, the court relied on the obscenity standards embodied in Section 847.011(10), Florida Statutes, F.S.A....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal
...The complaint sought a determination of whether or not the subject book was, as a matter of law, obscene, and such other relief as the court might deem meet and proper. Subsequently, the Legislature of the State of Florida repealed § 847.01, supra, and simultaneously enacted § 847.011, Fla. Stat., F.S.A., 1961, to become effective May 5, 1961. Section 847.01, supra, contained a provision authorizing state's attorneys to institute declaratory judgment proceedings to determine whether printed matter be obscene. However, § 847.011, supra, contained no such provision. On June 8, 1961, appellee was allowed to amend his complaint to reflect the enactment of § 847.011 supra....
...ensive to the common conscience of this community measured by present day moral standards of this community and is an obscene book condemned by the Florida Statutes." The appellant contends that the repeal of § 847.01, supra, and its replacement by § 847.011, supra, while this suit was pending ousted the circuit court of jurisdiction since the latter statute does not make provision for the granting of declaratory relief in such cases. We find this contention to be without merit. We have examined the record and found that, regardless of the effect on this suit of the repeal of § 847.01 and simultaneous enactment of § 847.011, the allegations of the complaint and the evidence offered in support thereof are more than sufficient to bring this suit within the jurisdiction of the court under the provisions of the declaratory judgment act, Chapter 87, Fla....
...The test of obscenity is whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest, that is to say *21 arouses lascivious or lustful thoughts. Roth v. United States, supra; Rachleff v. Mahon, supra; see also § 847.011, supra....
CopyCited 7 times | Published | Supreme Court of Florida
...In May, 1970, an information was filed in the Criminal Court of Record for Orange County, Florida, charging respondent with possession on October 1, 1969, of an obscene magazine with knowledge of the nature of the magazine and with the intention to distribute it in violation of Section 847.011(1)(a), Florida Statutes, F.S.A....
...l, Fourth District. While finding that the magazine could be found obscene when measured by the criteria established in South Florida Art Theatres, Inc. v. State ex rel. Mounts, [2] the District Court found that in light of Miller v. California, [3] Section 847.011, Florida Statutes, F.S.A., failed to give adequate notice of the conduct sought to be proscribed and was unconstitutional....
...tled "His'n Hers, Volume I" is obscene. Therefore, we direct our attention solely to the constitutional issue raised by the District Court of Appeal. It was the District Court's view that at the time of the offense with which respondent was charged, Section 847.011(1)(a), Florida Statutes, F.S.A., [4] was unconstitutionally broad in scope; the court stated, inter alia : "Nor does it appear ......
...d in such manner as to provide by judicial pronouncement the necessary specificity... ." [5] We disagree. On June 11, 1969, the case of State v. Reese, [6] became final; in that case, this *376 Court held that once the word "immoral" was eliminated, Section 847.011(2), Florida Statutes, F.S.A., [7] was not susceptible to attack on the ground of unconstitutional vagueness. Since the standard specified in Section 847.011(2), Florida Statutes, F.S.A., regarding possession of obscene materials, is the same standard specified in Section 847.011(1)(a), Florida Statutes, F.S.A., relating to distribution of obscene materials, inter alia, and since that standard has been upheld in Section 847.011(2), Florida Statutes, F.S.A., we now hold that, with the elimination of the word "immoral" (as being unconstitutionally vague pursuant to State v. Reese, [8] supra ), the same standard is also constitutional when found in Section 847.011(1)(a), Florida Statutes, F.S.A....
...us to recede from our decision in Reese, supra. Since the recent opinions of the United States Supreme Court have not abrogated the ruling in Reese, supra, which was clearly affirmed by this Court in Rhodes v. State, [9] we hold that the language of Section 847.011(1)(a), Florida Statutes, F.S.A., is sufficient to meet the constitutional requirements of notice....
...d. It is so ordered. ROBERTS, McCAIN and DEKLE, JJ., concur. ADKINS, C.J., and ERVIN, J., dissent. NOTES [1] Papp v. State,
281 So.2d 600 (Fla.App. 1973). [2]
224 So.2d 706 (Fla.App. 1969). [3]
413 U.S. 15,
93 S.Ct. 2607,
37 L.Ed.2d 419 (1973). [4] "
847.011 Prohibition of certain acts in connection with obscene, lewd, etc., materials; penalty....
CopyCited 7 times | Published | Supreme Court of Florida
...[5] We also observe that under Rule 6.14, Florida Appellate Rules, F.S.A., "All appeals in criminal cases shall have precedence over other appeals and shall be placed first upon the calendar for hearing." Appellant's third point relating to the alleged unconstitutionality of the statute is that: "AN ANALOGOUS STATUTE, SECTION 847.011 FLORIDA STATUTES 1969, AS AUTHORITATIVELY INTERPRETED BY THE FLORIDA SUPREME COURT AND LOWER FLORIDA COURTS, PRESCRIBES AN INAPPROPRIATE LOCAL STANDARD FOR THE IDENTIFICATION OF OBSCENITY." Specifically, appellant refers to Fla. Stat. § 847.011, F.S.A., and criticism of standards used in various Florida cases by the majority of the assembled panel in Meyer v....
...n until cases such as Meyer v. Austin,
319 F. Supp. 457 (M.D.Fla. 1970) are decided by the Supreme Court of the United States. These Federal cases when decided may give us clearer guidelines for the application of section
847.013 and perhaps of F.S. section
847.011, F.S.A....
CopyCited 7 times | Published | District Court, M.D. Florida | 1970 U.S. Dist. LEXIS 12803
...he owner and operator of the theatre in which the film was exhibited. The basis of the seizure and arrest was the alleged obscenity of the film under the provisions of City Ordinance Sec. 43.56-1 of the City of Orlando and Florida Statutes, Sections
847.011 and
847.03, F.S.A. adopted in haec verba and in toto by the city ordinance. We do not reach the issue of obscenity. Plaintiffs sought judgment declaring Sections
847.011 and 846.03 of the Florida Statutes, F.S.A....
...If our holding is complied with, no injunctions are necessary. We retain jurisdiction for the purposes of hereafter entering any orders necessary to enforce the views expressed herein. Delta Book Distributors, Inc. v. Cronvich, supra. We decline to pass on the constitutionality of Florida Statutes, Sections
847.011 and
847.03, F.S.A....
...he complaint herein, and refuse to return the same to Plaintiffs who have made demand therefor. 5. That the City of Orlando accomplished the aforesaid confiscation under the authority of Municipal Ordinance No. 43-56-1, of the City of Orlando, and F.S. 847.011, as alleged in paragraph 5 of Plaintiffs' complaint, copies of which ordinance and statute are attached hereto as Exhibit "B"....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 21 Media L. Rep. (BNA) 2129, 1993 Fla. App. LEXIS 7991, 1993 WL 287721
...oth facial and "as applied" grounds); Pace v. State,
368 So.2d 340 (Fla. 1979) [F.S.
877.02(1), the antisolicitation of legal business statute attacked on both facial validity and "as applied" grounds]; Roberts v. State,
373 So.2d 672 (Fla. 1979) [F.S.
847.011(7) authorizing seizure of obscene materials was assailed both as facially invalid and unconstitutional as applied]....
CopyCited 7 times | Published | District Court, M.D. Florida
...Before SIMPSON, Circuit Judge, and McRAE and YOUNG, District Judges. OPINION WILLIAM A. McRAE, Jr., District Judge: Plaintiffs have brought this action seeking injunctive, declaratory, and other relief, and in particular challenging the constitutionality of the Florida obscenity statute, section 847.011....
...e of Mandell v. Carson,
309 F.Supp. 326 (M.D.Fla., 1969) (temporary restraining order) because no prior adversary hearing had been obtained. A civil proceeding against the exhibitor Mandell and against the film followed in state court seeking, under section
847.011, a temporary restraining order against the further showing of the film until a final determination of the state proceeding, and seeking to have the film declared obscene and to have it confiscated and destroyed....
...andell abandoned the suit). [3] The present suit was filed at the same time as the petition for removal, on October 30, 1969. Subsequently, on November 17, 1969, a temporary restraining order was entered against further acts by defendants to enforce section 847.011 against the film "Vixen" pending consideration by this Court....
...; and (5) the State of Florida has no legitimate interest in the suppression of allegedly obscene movies, shown exclusively to adults who, though not pandered to, are first informed of the content. [8] This Court finds the Florida obscenity statute, section 847.011, unconstitutional in its entirety for the first three contentions made by plaintiffs; the fourth claim we find to be not an unconstitutional defect, but one which it is desirable to correct if a subsequent statute should be enacted; a...
...ut only a declaratory judgment with injunctive relief from future prosecutions. We hold that plaintiffs' standing to bring this action is not diminished by their commercial interest in the film. 1. Provision for Ex Parte Injunction Florida Statutes, Section 847.011 (7) (b) (1967), provides for the issuance of an ex parte injunction, without notice, of a threatened violation of the obscenity statute: (7) (b) After the filing of such a complaint, the judge to whom it is presented may grant an orde...
...the staute unconstitutional. Moreover, a contrary ruling by this Court to the position the Florida courts have taken would not necessarily be followed by them. [13] *467 3. Failure of the State to Provide for Prompt Appellate Consideration Although section 847.011(7) (b), (c), provides for an expedited trial procedure to minimize incursions on the right of protected expression, the statute makes no provision whatever for an expedited appellate consideration by the District Courts of Appeal, the courts of final jurisdiction in most cases....
...The state has recently taken such appeals from lower court rulings. E. g., State ex rel. Hallowes v. Reeves,
224 So.2d 285 (Fla., 1969); State v. Reese,
222 So.2d 732 (Fla., 1969) (reinstating two criminal informations which had been dismissed by the trial judge on the grounds that section
847.011 failed to prescribe a sufficiently ascertainable standard of guilt)....
...Massachusetts,
383 U.S. 413,
86 S.Ct. 975,
16 L.Ed.2d 1 (1966), requirement for obscenity that the material be without socially redeeming value. Plaintiffs also contend, with some force, that the recent decision of the Florida Supreme Court, upholding section
847.011, in State v....
...judge. GEORGE C. YOUNG, J., dissents by separate opinion. JUDGMENT For reasons assigned in Judge McRae's opinion for the majority of this Court, filed herein this day (Judge Young dissenting by separate opinion), it is Ordered: 1. Florida Statutes, section 847.011 (1967), F.S.A....
...Defendants' motion for new trial or stay is hereby denied. 2. Plaintiffs' motion to amend judgment is granted and in lieu of paragraph 1 of the judgment heretofore entered in this cause on July 22, 1970, the following paragraph shall be substituted: 1. Florida Statutes, section 847.011 (1967), F.S.A....
...YOUNG, District Judge (dissenting): I dissent from both the opinion and decision rendered by the majority in this case and I therefore respectfully declined to approve the judgment. This case arose because of efforts by Florida state officials to enforce Section 847.011 of the Florida Statutes, F....
...69-8106-H (4th Judicial Cir.Ct., Duval Cty., Fla.) to have "Vixen" declared obscene and to have it confiscated and destroyed. Upon the subsequent filing of this case, Judge McRae entered a one-judge temporary restraining order restraining the defendants against further acts to enforce Section 847.011 which was, in effect, an injunction restraining the state suit. The plaintiffs here seek a declaratory judgment holding Section 847.011 to be unconstitutional and for an injunction permanently enjoining the defendants from enforcing the civil or criminal provisions of that statute....
...but no time limit is imposed for completion of Board action." The Maryland statute provided for administrative determination of obscenity without any judicial participation. The Florida statute does not suffer from the infirmity of Freedman because Section 847.011(7) (c) provides: "The person sought to be enjoined shall be entitled to a trial of the issues within one day after joinder of issue and a decision shall be rendered by the court within two days of the conclusion of the trial." In Free...
...n that issue. In addition to believing that the statute is not unconstitutional on the grounds stated by the majority, there is another reason for my declining to join in the judgment enjoining all enforcement of the civil and criminal provisions of § 847.011 Florida Statutes, F.S.A....
...effect of restraining the state suit then pending wherein T. Edward Austin as the State Attorney for the Fourth Judicial Circuit of Florida, had brought a civil proceeding against the exhibitor Mandell of the film Vixen under the civil provisions of § 847.011....
...The majority opinion expresses concern over the finding that the state proceeding "chilled" the rights of Vixen's promoters. But who can say from the record that such "chilling" was not justified in the state's efforts to suppress obscenity? APPENDIX I FLORIDA STATUTES, 1967 CHAPTER 847 OBSCENE LITERATURE; PROFANITY 847.011 Prohibition of certain acts in connection with obscene, lewd, etc., materials; penalty....
...This Court enjoined the criminal prosecution of Mandell based on the seizure without a prior adversary hearing, and required the defendants to return the film to Mandell. After the film was returned to Mandell, the State Attorney commenced a civil proceeding against him in the State circuit court under Florida Statute 847.011, seeking to have the film declared obscene and to have the film again confiscated and destroyed....
...ney not to show the film again. He offered to submit for the State Attorney's inspection and approval any "questionable" films he might desire to exhibit in the future. The State Attorney declined. NOTES [1] The statute challenged, Florida Statutes, section 847.011 (1967) is attached as Appendix I....
...ging that a showing of the film in Gainesville beginning March 6 was stopped by a temporary restraining order issued March 10 in a civil action brought in the Eighth Judicial Circuit of Florida (which includes a portion of the Middle District) under section 847.011 against M & W Theatres, Inc., the exhibitor of a print of "Vixen" owned by the present plaintiffs....
...e a prior adversary hearing determines probable cause that a film or book is obscene, or whether, in the alternative, one who sells or exhibits must do so at his own risk. In addition, this Court has not been presented with an attack specifically on section
847.011(1) (b), although it is somewhat similar to section
847.06(2), stricken as unconstitutional in Morrison v....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1998 WL 712764
...d with Russell. She asserted that Russell photographed and videotaped these acts and utilized AOL's "chat rooms" to market the photographs and videotapes, and to later sell a videotape to a man in Arizona. In count one, Doe alleged that AOL violated section 847.011(1)(a), Florida Statutes (1995), by knowingly allowing and permitting Russell "to sell, distribute, transmit or offer to sell, distribute or transmit photographs and videotape containing the images of the minor Plaintiff, JOHN DOE, whi...
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1989 WL 29025
...12, 1985, and March 7, 1987. Count I of the forty-seven count information charged each of the appellees with violating the Florida RICO (Racketeer Influenced and Corrupt Organization) Act, [1] based upon forty-eight underlying alleged violations of section 847.011, Florida Statutes (1985 and Supp....
...l as articles or instruments for obscene purposes, or the knowing possession of such materials with the intent to do so. As for the remaining forty-six counts of the information, each of the appellees was charged with one or more counts of violating section 847.011, Florida Statutes (Supp....
...ke a pretrial determination of the reasonable man standard applicable to obscenity prosecutions. After a hearing on these motions, the trial court entered an order which, among other things, dismissed the entire information. The trial court declared section 847.011 unconstitutional under both the United States and Florida constitutions based upon its conclusions that the statute violates the due process clause of the United States Constitution because of vagueness, fails to conform to the standards enunciated by the United States Supreme Court in Miller v....
...2607,
37 L.Ed.2d 419 (1973), and Pope v. Illinois,
481 U.S. 497,
107 S.Ct. 1918,
95 L.Ed.2d 439 (1987), and violates the privacy provision of the Florida Constitution. In addition, the trial court found that the Florida RICO Act, when interpreted in conjunction with the prohibitions of section
847.011 relating to obscene material, has an unconstitutional "chilling effect" upon protected speech....
...Finally, although unnecessary to the dismissal, the trial court set forth the reasonable man standard which would be applied in the event that the case proceeded to trial. The state filed this timely appeal. We agree with the state's contentions that the trial court erred in (1) declaring section 847.011 unconstitutional under the United States and Florida constitutions, (2) finding that the combined provisions of the Florida RICO Act and section 847.011 have an unconstitutional chilling effect upon protected speech, and (3) defining the reasonable man standard applicable to offenses involving obscene materials. CONSTITUTIONALITY OF SECTION 847.011 The trial court's finding that section 847.011 violates the due process clause of the United States Constitution because of vagueness was based upon its analysis of the statutory definition of obscene material. *221 All of the offenses charged in the information were based upon alleged acts which, if proven, would constitute violations of either the 1985 version or the 1986 amended version of section 847.011(1)(a). Section 847.011(11), Florida Statutes (1985), provided: For the purposes of this section, the test of whether or not material is obscene is: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest....
...xual conduct as specifically defined herein; and (c) Taken as a whole, lacks serious literary, artistic, political, or scientific value. See Ch. 86-238, Laws of Fla.; §
847.001, Fla. Stat. (Supp. 1986). Contrary to the trial court's conclusion that section
847.011 violates due process because the statutory definition of obscene material is vague, both of the above quoted definitions have withstood void for vagueness challenges. See Rhodes v. State,
283 So.2d 351 (Fla. 1973); Haggerty v. State,
531 So.2d 364 (Fla. 1st DCA 1988). Following Rhodes and Haggerty, we hold that section
847.011 is not unconstitutional due to vagueness. We also disagree with the trial court's finding that section
847.011 is unconstitutional for failure to comply with the standards enunciated by the United States Supreme Court in Miller and Pope....
...The trial court's erroneous conclusion was based, at least in part, on an analysis of the definition of obscene material contained in section
847.07(2), Florida Statutes (1985). That definition, however, is not applicable to offenses charged under section
847.011 and, therefore, is not relevant to the facts or legal issues involved in this case. See §
847.011(11), Fla. Stat. (1985); §
847.001(7), Fla. Stat. (Supp. 1986). We also find that the trial court improperly concluded that section
847.011 violates the right to privacy afforded under article I, section 23 of the Florida Constitution....
...from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law. The appellees essentially argue that section 847.011 violates the Florida Constitution because the statute prevents their customers from acquiring obscene materials which, under Stanley v....
...viduals who are not parties to the lawsuit but have no effective avenue of preserving their rights themselves. See State v. Saiez,
489 So.2d 1125, 1127 n. 2 (Fla. 1986); Higdon v. Metropolitan Dade County,
446 So.2d 203, 207 (Fla.3d DCA 1984). Since section
847.011(1)(a) prohibits distribution of obscene materials, the customers whose privacy rights could possibly be violated by the statute are not subject to prosecution and, consequently, they have no effective avenue of preserving their rights. See Eisenstadt. In addition, enforcement of the statute will "materially impair" the ability of the appellees' customers to obtain the materials which the appellees are prohibited from distributing under section
847.011(1)(a)....
...See Eisenstadt; Griswold. We, therefore, find that the appellees have standing to assert a right of privacy claim on behalf of their customers in this case. Having determined that the appellees have standing, we proceed to the merits of the trial court's ruling that section 847.011 is unconstitutional because it violates the right of privacy provision of the Florida Constitution....
...60, 499 A.2d 308 (1985); 31 West 21st St. Assocs. v. Evening of the Unusual, Inc., 125 Misc.2d 661, 480 N.Y.S.2d 816 (N.Y. City Civ.Ct. 1984); State v. Lunati, 665 S.W.2d 739 (Tenn. Crim. App. 1983), cert. denied,
446 U.S. 938,
104 S.Ct. 1913,
80 L.Ed.2d 461 (1984). Since section
847.011 does not infringe upon the privacy rights of the appellees' customers, the compelling state interest standard is not applicable to the facts of this case....
...However, it is not so broad that a person can take it with him to the store in order to purchase obscene material even though he has the right to possess such material in the privacy of his home. While our supreme court has not considered the validity of section
847.011 under the privacy provision of the Florida Constitution, the court relied upon Kraham to uphold the constitutionality of this statute subsequent to the adoption of article I, section 23. See Sardiello v. State,
394 So.2d 1016 (Fla. 1981) (upholding section
847.011, Florida Statutes (1977)). In addition, we are unaware of any indication that the drafters of article I, section 23 were concerned with broadening the right to privacy as it relates to obscene materials or that the validity of section
847.011 is in any way affected by the privacy provision....
...3d DCA 1988). See generally, Cope, To Be Let Alone: Florida's Proposed Right of Privacy, 6 Fla.St. U.L.Rev. 671, 721-740 (1978) (commission's proposals on scope of privacy provision). We, therefore, conclude that the trial court erred in finding that section 847.011 interferes with the right of privacy afforded by the Florida Constitution. CHILLING EFFECT OF RICO ACT We disagree with the trial court's finding that the combined provisions of the Florida RICO Act and section 847.011 have an unconstitutional "chilling effect" on protected speech....
...exually oriented or sexually explicit materials, including those that are constitutionally protected." Contrary to the trial court's conclusion, and as previously mentioned herein, the definitions of obscene material contained in the 1985 version of section
847.011(11) and the 1986 version of section
847.001(7) have both withstood challenges on vagueness grounds....
...895.01-895.08, the term: (1) "Racketeering activity" means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit: (a) Any crime which is chargeable by indictment or information under the following provisions of the Florida Statutes: .... 23. Section 847.011, s....
CopyCited 6 times | Published | District Court, S.D. Florida | 17 Media L. Rep. (BNA) 2073, 1990 U.S. Dist. LEXIS 6883, 1990 WL 74653
...ublic. Deputy Wichner communicated that information to the judge. On March 9, Judge Grossman issued an order after reviewing the Nasty recording "in its entirety." The judge explicitly found probable cause to believe this recording was obscene under section 847.011 of the Florida Statutes and under applicable case law....
...413, 418,
86 S.Ct. 975, 977,
16 L.Ed.2d 1 (1966) (state statute interpreted by state's highest court as including all works "obscene in the constitutional sense"). The Florida Legislature has enacted a comprehensive set of laws. The primary provision is section
847.011 of the Florida Statutes....
...They can argue that the obscenity statutes should or should not be repealed. In the meantime, however, the law must be obeyed and the Sheriff has a duty to enforce it. Indeed, Florida's Legislature has mandated that all sheriffs in the state are to "vigorously enforce" the obscenity laws. See FLA.STAT.ANN. § 847.011(9) (Supp.1990)....
...rds required by due process. To trigger the Fourteenth Amendment's application, the state regulation must constitute a deprivation of a protected interest. Florida law provides that no property interest exists in obscene materials. See FLA.STAT.ANN. § 847.011(7) (Supp.1990)....
...roceeding. See Times Film Corp. v. City of Chicago,
365 U.S. 43, 82-84,
81 S.Ct. 391, 412-413,
5 L.Ed.2d 403 (1961) (Douglas, J., dissenting). Further, Florida's Legislature has provided a civil remedy in the form of an injunction. See FLA.STAT.ANN. §
847.011(8) (Supp....
...uch consultation is genuinely undertaken with the purpose of aiding the suspect to comply with the law and avoid prosecution under the obscenity laws, or (b) vigorously enforcing the obscenity laws of the state of Florida as mandated and required by section 847.011(9), Florida Statutes....
CopyCited 6 times | Published | Florida 4th District Court of Appeal
...On Friday, 20 September 1968, the county solicitor for Palm Beach County, Florida, brought suit in the Circuit Court for Palm Beach County against South Florida Art Theaters, Inc., Betty Henn, its president, and Harry Turbeyfill, its treasurer. The suit was filed pursuant to F.S. 1967, Section 847.011(7), F.S.A., to enjoin the said defendants from showing an allegedly obscene motion picture....
...dency of the case. Pursuant to the order, the defendants appeared on 23 September and presented a motion to dismiss the temporary restraining order. The motion to dismiss was predicated on the following grounds: (1) the motion picture is exempt from Section 847.011 by the operation of subsection (9) thereof; (2) Section 847.011 violates the First Amendment of the United States Constitution; (3) Section 847.011 is void for vagueness and, therefore, violates the Fourteenth Amendment of the United States Constitution; (4) Section 847.011(10) is unconstitutional in that it does not provide a proper definition of "obscenity"; and (5) the complaint sets forth only conclusions of the pleader; therefore, the temporary injunction based thereon was not based on the reasoning...
...olving the temporary restraining order is denied." An interlocutory appeal has been taken from that order. The defendants basically argue three points. They are: Point 1. The motion picture film which was the subject of the complaint was exempt from Section 847.011 by operation of subsection (9) thereof. Point 2. Section 847.011 is void because the standard provided for the determination of obscenity is without a sufficient degree of definiteness and is so broad that it reaches constitutionally protected publications. Point 3. The procedure employed by the trial court in granting the ex parte temporary restraining order infringed the defendants' constitutional right of free speech. The defendants in their brief concede that motion pictures are covered by Section 847.011, but argue that commercial movie theaters are exempt from Section 847.011 by the operation of subsection (9) thereof which provides that, "This section shall not apply to the exhibition of motion picture films permitted by § 521.02." F.S....
...ed and approved by the National Board of Review of Motion Pictures, Inc. or the Film Estimate Board of National Organizations, or has been licensed by the State Department of Education of the State of New York. It is clear from the plain language of Section 847.011(9) and Section 521.02 that the legislature intended to exempt from the obscenity statute any film approved by one of the organizations specified in Section 521.02. There is no basis in the statute to support the defendants' contention that all films shown in commercial theaters are exempt from Section 847.011 and there is no basis in the record to indicate that the particular film here involved was within the standards of Section 521.02 and, therefore, exempt from Section 847.011(9). For this reason we conclude that the first point is without merit. Subsection (1)(a) of Section 847.011 in its pertinent parts provides: "A person who knowingly * * * shows or * * * offers to * * * show * * * or has in his possession * * * with intent to * * * show * * * any obscene * * * motion picture film * * * is guilty of a misdemeanor * * *." *709 The fine provided is $1,000.00 or one year in jail or both....
...land's Memoirs of a Woman of Pleasure v. Attorney General of Massachusetts, 1966,
383 U.S. 413,
86 S.Ct. 975,
16 L.Ed.2d 1; and Redrup v. State of New York, 1967,
386 U.S. 767,
87 S.Ct. 1414,
18 L.Ed.2d 515, subsequent to the enactment of F.S. 1967, Section
847.011(10), F.S.A....
...The very argument raised by defendants here was raised by the appellee in the Reese case, supra, and rejected. The pertinent language from the Reese case is as follows: "The appellee contends that these decisions have so modified the Roth test as to amount to an abandonment thereof, and that Subsection (10) of § 847.011 is therefore `unconstitutional.' It appears to us, however, that a determination of the question of whether or not the Roth test has been abrogated by the United States Supreme Court will have no effect whatsoever on the question of the validity of the statute, § 847.011(2), which the appellee was charged with violating....
...There can be no doubt that prosecutions under an obscenity statute may be initiated and tried under a court-adopted standard of obscenity as well as under a legislatively prescribed one. See Roth v. United States, supra. The addition of Subsection (10) to § 847.011 was *710 merely a legislative declaration of a judicial rule that had already been adopted by the courts of this state....
...sound judicial resolution." Also significant to our decision is the recognition by the Supreme Court in Freedman, supra, that, "films differ from other forms of expression." We must look at the procedure employed by the trial court under F.S. 1967, Section 847.011(7), F.S.A., to determine whether or not it collided with the principles of the cited cases and particularly with the principle that state procedure for the regulation of obscenity must ensure against the curtailment of constitutionally protected expression and focus searchingly on the question of obscenity. The procedure which was employed with respect to the issuance of the temporary injunction must not be viewed in isolation, but must be considered as a part of the total procedure authorized by F.S. 1967, Section *713 847.011, F.S.A....
...of the case. This hearing was set for the next business day following the day on which the order was issued. Finally, it should be noted that the restraining order was not issued until after the complaint had been filed; therefore, under F.S. 1967, Section 847.011(7)(c), F.S.A., the defendants could have filed an answer and secured a trial of the issues within one day and a final decision within two days after the conclusion of the trial....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1993 WL 393625
...a. In each case, the victim had an opportunity to testify and be cross-examined. The victim's demeanor and credibility could be tested. The facts of this case present at least a jury issue. When the facts of this *861 case are considered in light of section 847.011, Florida Statutes (1991), to rule that Mitchell's behavior is not a jury question, leads to an incongruous result....
CopyCited 5 times | Published | District Court, N.D. Florida | 1970 U.S. Dist. LEXIS 10827
...The defendant Fitzpatrick on April 6, 1970, in his official capacity as Judge of that court, granted interlocutory relief based upon the offering for sale by plaintiff of certain books determined by the state court after examination to be obscene under Section 847.011, Florida Statutes, F.S.A....
CopyCited 5 times | Published | District Court, S.D. Florida | 1994 U.S. Dist. LEXIS 10519, 1994 WL 395319
...(a) Exhibits, displays, signs and distribution of printed matter is permitted within park areas, provided a permit to do so has been issued by the manager, and provided further that the exhibit, display, sign or printed matter is not solely commercial advertising and that no obscene literature or material, as defined in section 847.011 Florida Statutes, is displayed or distributed....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1988 WL 7062
...Jesus' wife, Concepcion, conducts a restaurant business in Tampa. Jesus's 1978 Cadillac and Concepcion's 1985 Cadillac were seized by the sheriff as an outgrowth of a direct information charging Jesus and Alexander with the violation of section
895.03(3), Florida Statutes (1985), and section
847.011(1)(a), Florida Statutes (1985)....
CopyCited 5 times | Published | District Court, M.D. Florida | 1970 U.S. Dist. LEXIS 12730
...Tumin, Asst. Counsel, Jacksonville, Fla., for respondents. PRELIMINARY INJUNCTION WILLIAM A. McRAE, Jr., District Judge. This is an action seeking damages and injunctive relief under 42 U.S. C. § 1983 from the enforcement of the Florida obscenity statute, section 847.011, in an unconstitutional manner....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal
...d/b/a Little Adult Theater, appeals from a final judgment issued on April 1, 1971, which permanently enjoined *212 it from showing a motion picture, two stag short subject movies and two films advertising coming attractions because they were obscene and in violation of Florida Obscenity Law, § 847.011, Fla....
...al limits of the jurisdiction in which the action was brought to trial. See State of Florida ex rel. Little Beaver Theatre, Inc. v. Tobin et al., Fla.App.,
258 So.2d 30, released February 15, 1972. The question of the constitutionality of Fla. Stat. §
847.011, F.S.A....
CopyCited 4 times | Published | Supreme Court of Florida
...Hopkins, Miami Beach, and Allan V. Everard, N. Palm Beach, for appellants. Earl Faircloth, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee. PER CURIAM. In these consolidated appeals, appellants contest their convictions of violation of Section 847.011, Florida Statutes, commonly referred to as the Florida obscenity statute....
CopyCited 4 times | Published | Supreme Court of Florida
...These cases are before us pursuant to a mandate of the Supreme Court of the United States, [1] decided May 20, 1975, reversing a decision of this Court. [2] In these consolidated appeals Appellants originally contested their convictions of violation of Section 847.011, Florida Statutes, commonly referred to as the Florida obscenity statute....
CopyCited 4 times | Published | Florida 4th District Court of Appeal
...This is a consolidated appeal of two identical orders, granting appellee's motions to dismiss informations against him. *72 Appellee, a clerk in an "adult" bookstore, was arrested and charged with possession of obscene material with intent to sell, in violation of Section 847.011(1), Florida Statutes (1981)....
...Such appeal was timely filed, and was still pending when appellee was arrested on two additional occasions on similar charges. However, whereas he was charged in the first instance with a misdemeanor, the subject informations here each charged him with a third degree felony, because Section 847.011(1)(a) provides for the enhanced charge for one previously convicted of violating the same subsection....
...While there appears to be no case on all fours with the instant ones, there is a line of cases sufficiently parallel to justify analogizing. Here the enhancement is of the crime charged; there, of the punishment to be imposed. The statutory provision at the base of the present issue, Section 847.011(1)(a), Florida Statutes (1981), raises a second offense of possession of obscene matter with intent to sell from a misdemeanor to a third degree felony....
CopyCited 4 times | Published | Supreme Court of Florida
...the new U.S. Supreme Court decisions. We now proceed to this reconsideration. STATUTE CONSTITUTIONAL We have set forth in Rhodes v. State,
283 So.2d 351 (Fla. 1973), just released, the application of these opinions with regard to the related statute §
847.011 and have upheld the statute on the basis of the principles set forth in Miller , etc....
CopyCited 3 times | Published | Supreme Court of Florida
...Rehearing Denied July 31, 1978. *394 Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, Florida, for appellant. Allan L. Hoffman, West Palm Beach, for appellee. HATCHETT, Justice. We must determine whether Section 847.011, Florida Statutes (1975) which makes unlawful the sale of obscene material is so inconsistent with the right to privately possess obscene material, as expressed in Stanley v....
...1243,
22 L.Ed.2d 542 (1969) as to render the statute unconstitutional. We have jurisdiction under Article V, Section 3(b)(1), Florida Constitution. We hold the statute to be constitutional. The appellee, Samuel Kraham, was charged by information with two counts of selling obscene motion pictures in violation of Section
847.011, Florida Statutes (1975)....
...Carey,
430 U.S. 144,
97 S.Ct. 996,
51 L.Ed.2d 229) at page 996 of 97 S.Ct. (1977)]. The Legislature could enact laws specific enough to accomplish the regulation it has a right to impose. The present law is overbroad for that purpose. Evenhanded enforcement of F.S.
847.011 is not possible and therefore is contrary to the Constitution; ....
...see dicta by Mr. Justice Stevens at page 996 of 97 S.Ct. (1977)]. The Legislature could enact laws *395 specific enough to accomplish the regulation it has a right to impose. The present law is overbroad for that purpose. Evenhanded enforcement of F.S. 847.011 is not possible and therefore is contrary to the Constitution." At present, the controlling case for the definition of obscenity is Miller v....
...and equal protection. The record in this case indicates that the person purchasing the material was a police officer; there is no allegation that he was offended by the material; and there is no allegation regarding which section of Florida Statute 847.011 has been violated....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...*1242 Norman J. Abood, Jacksonville, for petitioners. Jim Smith, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for respondent. PER CURIAM. Petitioners were arrested and charged with a misdemeanor violation of the obscenity laws, Florida Statute 847.011, and each was placed under bond of $50,000.00....
...t proceedings. Cf. The Ladoga Canning Corp., etc. v. McKenzie, etc.,
370 So.2d 1137, holding invalid as an impermissible prior restraint injunctions prohibiting distribution of "other printed materials which violate the provisions of Florida Statute
847.011(1)(a)," pointing out that the right to a prior judicial determination *1243 of what may be enjoined as obscene may not be circumvented either through a blanket injunction which prohibits, in essence, the sale of "all obscene materials" or which places the burden of making this determination upon the vendor....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...Record for Escambia County, declaring that the motion picture film "Lorna" is lewd and obscene, and ordering the film's destruction. The sole question before us for determination is whether the said film is lewd and obscene within the provisions of Section 847.011, Florida Statutes, F.S.A....
...l hearing; and after the Court and witnesses viewed the movie film entitled `Lorna', testimony was taken and counsel argued the cause; and upon the evidence presented the Court finds that said movie film is lewd and obscene within the prohibition of Section 847.011 Florida Statutes 1965 in that the dominant theme of the film appeals to prurient interest in sex, and the film is patently offensive because it affronts contemporary community standards relating to representation of sexual matters, an...
...aving a strong impact upon the viewer, that impact seems largely directed at appealing to the viewer's prurient interest. We can see no social value in such a film. The complaint in this cause alleges that the film "Lorna" is lewd and obscene, under Section 847.011, Florida Statutes, F.S.A., without alleging also that the film falls under the ban of Section 847.011 as "lascivious, filthy, indecent, immoral, sadistic, or masochistic." If the film "Lorna" is lewd or obscene, as it has been judicially shown to be, that film we think, is, a fortiori, *669 lascivious, filthy, indecent, and immoral, if not also sadistic....
CopyCited 2 times | Published | Supreme Court of Florida
...DeMeo, South Miami, Richard Yale Feder, Miami, and M. David Gelfand, pro hac vice, Coral Gables, for American Civil Liberties Union Foundation of Florida, Inc., amicus curiae. SUNDBERG, Justice. The issue in this case is whether the entry of an injunction pursuant to section 847.011(8), Florida Statutes (1977), restraining a bookseller in futuro from disseminating any printed materials or other merchandise which violate the provisions of section 847.011(1)(a), Florida Statutes (1977), absent a judicial determination that the particular materials or merchandise are obscene, constitutes an impermissible prior restraint proscribed by the first amendment to the United States Constitution....
...Appellants are operators of "adult" bookstores located in the City of Fort Lauderdale. Appellee, as city attorney for the *1139 City of Fort Lauderdale, instituted civil proceedings against appellants in the Circuit Court for Broward County, Florida, by filing a complaint seeking injunctive relief pursuant to section 847.011(8), Florida Statutes (1977)....
...Appellee requested a determination that the eight magazines were obscene and an injunction to bar their sale or distribution. He further sought to enjoin the dissemination of any other printed materials or other merchandise which violated the provisions of section 847.011(1)(a)....
...unction requested did not refer to any specific material and, therefore, was vague and overbroad. After hearings, the respective circuit judges denied appellee's motions to dismiss. In identical orders granting temporary injunctions, the judges held section 847.011 constitutional on its face and as applied to appellants....
...Further, the eight magazines submitted by appellee were found to be obscene and their continued sale or distribution was enjoined until final hearing or further order of the courts. Appellants were also directed to refrain from selling or offering for sale any printed materials which violated the provisions of section 847.011(1)(a)....
...orders granting temporary injunction. Appellants appealed to this Court, raising the issues previously considered in their motions to dismiss below. Because the orders of the circuit judges directly and initially ruled upon the constitutionality of section 847.011, Florida Statutes (1977), we have jurisdiction....
...unconstitutional per se. See McKinney v. Alabama,
424 U.S. 669,
96 S.Ct. 1189,
47 L.Ed.2d 387 (1976); Paris Adult Theatre I v. Slaton,
413 U.S. 49,
93 S.Ct. 2628,
37 L.Ed.2d 446 (1973). Further, this Court has confirmed the facial validity *1140 of section
847.011, Florida's civil injunction statute relating to obscene materials. Johnson v. State,
351 So.2d 10 (Fla. 1977); State ex rel. Gerstein v. Walvick Theatre Corp.,
298 So.2d 406 (Fla. 1974); State v. Papp,
298 So.2d 374 (Fla. 1974). Appellants argue, however, that section
847.011 has been unconstitutionally applied in the case at bar. This is so because, in addition to proscribing sale of the eight magazines which the circuit court found to be obscene, the injunctions also prohibited the distribution of "other printed materials which violate the provisions of Florida Statute
847.011(1)(a)." These "other printed materials" were not specifically identified in the court orders, nor was the issue of their alleged obscenity determined by the court prior to issuance of the injunctions....
...ials sold by appellants. This Court rejected a similar argument in Mitchem v. State ex rel. Schaub,
250 So.2d 883 (Fla. 1971), and invalidated a blanket injunction prohibiting the sale of "`obscene or pornographic publications in violation of F.S.A.
847.011'": [W]e also find that the presentation of Exhibits 1, 2 and 3 below as "representative" of the contents of the Store was deficient......
...chilling effect upon their first amendment freedoms which will not be countenanced by our Constitution. It is well established that obscenity is not afforded protection by the first amendment and is properly subject to regulation by the state under section 847.011....
...taken "as a whole," a publication may not be suppressed merely because it contains certain poses or actions. *1142 Approval of this overly broad portion of these orders would place the imprimatur of this Court upon an unconstitutional application of section 847.011, Florida Statutes (1977)....
...Accordingly, with the exception of that portion of the orders finding the eight exhibits to be obscene and enjoining their sale, the orders granting permanent injunctions issued by the Circuit Court for Broward County, Florida, are dissolved, the circuit court rulings as to the constitutional application of section 847.011, Florida Statutes (1977), are reversed, and these causes are remanded to that court for proceedings not inconsistent with this opinion....
...State ex rel. Gerstein,
257 So.2d 912, is hereby disapproved to the extent of its inconsistency with the decision of this Court today. It is so ordered. ENGLAND, C.J., and ADKINS, OVERTON, HATCHETT and ALDERMAN, JJ., concur. BOYD, J., dissents. NOTES [1] §
847.011(1)(a), Fla....
CopyCited 2 times | Published | Supreme Court of Florida
...Gen., and Leonard Rivkind, Miami Beach, for appellant. Joel Hirschhorn, Miami, for appellees. DEKLE, Justice. Jurisdiction on this direct appeal from the circuit court is provided in Art. V, § 3(b)(1), Fla. Const., F.S.A., the trial court having expressly held F.S. § 847.011, F.S.A., unconstitutional....
...The factual situation present here is set out in chronological order: Sept. 8, 1973: Defendant corporation exhibited the motion picture entitled, "The Devil in Miss Jones." Sept. 11, 1973: Theatre and one of its employees were served with process in both a criminal proceeding and an injunction proceeding under F.S. § 847.011 [F.S.A.] Sept....
...Dec. 3, 1973: State commenced prosecution of the injunction proceeding which had been filed Sept. 11, 1973, the same date on which the criminal proceeding had been filed. Dec. 12, 1973: Trial court dismissed the injunction proceeding and declared F.S. §
847.011 [F.S.A.] unconstitutional, despite this Court's opinion in Rhodes v. State,
283 So.2d 351, filed Sept. 19, 1973, which upheld the portions of F.S. §
847.011 [F.S.A.] imposing criminal penalties, although not involving the constitutional validity of the portions of the statute providing for injunctions....
...The trial court rested its decision on the grounds of due process and double jeopardy. As to the latter ground, the trial judge ruled that the injunction proceeding was punitive in nature and that the civil injunction and criminal penalty portions of F.S. § 847.011, F.S.A., were so "duplicitous" as to entail double jeopardy for a person who has been the object of proceedings under both sections for a single transaction....
...The trial judge completely failed to deal with Kingsley Books, Inc. v. Brown,
354 U.S. 436,
77 S.Ct. 1325,
1 L.Ed.2d 1469 (1957), or May v. Harper,
250 So.2d 880 (Fla. 1971), in which we cited Kingsley Books, supra , in expressly holding the validity of the injunctive provisions of F.S. §
847.011, F.S.A....
...appropriate opportunities for the trial of the underlying issue, it is not for us to gainsay its selection of remedies." (emphasis ours)
354 U.S. at 441,
77 S.Ct. at 1327. We see no reason to rule otherwise, especially in view of the fact that F.S. §
847.011, F.S.A., was patterned after the New York statute involved in Kingsley Books . Accordingly, we hold that F.S. §
847.011, F.S.A., is not facially invalid under the Due Process Clause....
...ing grievance, or introduce regulations conducive to the public good." "Punitive," on the other hand, is defined as: "having the character of punishment or penalty; inflicting punishment or a penalty." The purpose of the injunction provision of F.S. § 847.011, F.S.A., is not to punish the exhibitor of a motion picture found to be obscene the criminal penalties included in the statute provide for that function but to remedy a public wrong, to-wit, the dissemination of obnoxious and prohibited materials. [2] Thus, the injunctive provisions are remedial, not punitive. This leaves for consideration on this point only the portion of the statute providing for a forfeiture of the offending material found in § 847.011(7)....
...ource *409 of the infection. The provisions being remedial, rather than punitive, in nature, double jeopardy principles do not bar the maintenance of the civil action after termination of the criminal proceedings under the statute. We hold that F.S. § 847.011, F.S.A., is not unconstitutional on its face as denying due process or as violating double jeopardy principles, and that in the instant cause the State is not precluded from pursuing also the alternative and cumulative remedy of injunction...
...15,
93 S.Ct. 2607,
37 L.Ed.2d 419, and Paris Adult Theatre I v. Slaton, 1973,
413 U.S. 49,
93 S.Ct. 2628,
37 L.Ed.2d 446. The rationale of the holdings in Miller and Paris Adult precludes resort to injunction suppression of the movie pursuant to F.S. Section
847.011, F.S.A., under the circumstances in this case. Miller and Paris Adult require the Legislature to define the "hard core" or pornographic sexual conduct the portrayal of which is to be prohibited. F.S. Section
847.011, F.S.A., enacted in 1969 well prior to the time those two decisions were rendered, does not do it as a cursory inspection will disclose....
...faction that: "The material is patently offensive in its description of sexual conduct specifically defined by the applicable state law." The Fourth District Court of Appeal in Papp v. State, 1973,
281 So.2d 600, said: "[3] It is apparent to us that §
847.011, F.S. 1969, F.S.A., does not so specifically define the sexual conduct, the portrayal of which it seeks to prohibit, as to meet the criteria established in Miller v. California, supra... ." To seek to retroactively read into F.S. Section
847.011, F.S.A....
...Georgia, wherein the State of Georgia's efforts to suppress the movie "Carnal Knowledge" are under review. ADKINS, C.J., concurs. NOTES [1] May v. Harper, supra, and Mitchem v. State ex rel. Schaub,
250 So.2d 883 (Fla. 1971), did not involve the criminal provisions of F.S. §
847.011, F.S.A....
CopyCited 2 times | Published | Supreme Court of Florida
...Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee. BOYD, Justice. An information was filed against Appellants on March 18, 1970, and they were each convicted by a jury in the Magistrate's Court of Hillsborough County on six counts of violation of Section 847.011, Florida Statutes, in the sale of obscene magazines....
...Appellants appealed to the Hillsborough County Circuit Court from an order denying both a motion in arrest of judgment and a motion for new trial. Thereafter, the Appellee moved to dismiss the appeal on several grounds, one of which was lack of jurisdiction because the trial court passed on the constitutionality of Section 847.011, Florida Statutes....
...The second standard of obscenity as required in Miller and previously established in "Memoirs" is whether the magazines depicted or described, in a patently offensive way, sexual conduct specifically defined by the applicable state law, as written or construed (in the instant case Section 847.011, Florida Statutes)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 15255, 2011 WL 4467635
...And, despite the dissent’s conclusion that the packaging of the photographs appears to indicate an intention to display them, we must emphasize that the State did not charge Mr. Parker with distribution of or intent to distribute obscene photographs. See § 847.011(l)(a), Fla....
...n of the child, “consent” to the child’s participation in such activities. Fla. H.R. Comm, on Crim. Just., HB 148 (1983) Staff Analysis 2 (Apr. 14, 1983) (on file with comm.) (emphasis added). . Chapter 847 covers obscene materials. See, e.g., § 847.011, Fla....
CopyCited 1 times | Published | District Court, S.D. Florida | 1973 U.S. Dist. LEXIS 11899
...In support of their claim of bad faith and harassment, the plaintiffs have made numerous factual allegations in their complaint. The complaint states that in Meyer v. Austin,
319 F.Supp. 457 (M.D.Fla.1970), 4 the previous Florida obscenity law, Fla.Stat. Ch. 847, §
847.011 (1967), F.S.A., was held unconstitutional and its enforcement was enjoined....
CopyCited 1 times | Published | District Court, M.D. Florida | 1975 U.S. Dist. LEXIS 15632
...Counsel, Jacksonville, Fla., for defendants. Before SIMPSON, Circuit Judge, and SCOTT and REED, District Judges. ORDER AND OPINION PER CURIAM. In this case, plaintiff Ellwest Stereo Theatres, Inc., challenges the constitutionality of Florida Obscenity Statutes Section 847.011, [1] alleging that utilization of this statute in civil and criminal prosecutions abridges rights secured to plaintiff by the First, Fifth and Fourteenth Amendments to the United States Constitution....
...Criminal charges brought against Brock, the film projectionist, were dismissed January 14, 1974. This action was commenced August 29, 1973. An amended complaint was filed November 9, 1973. Plaintiff challenges the constitutionality of Florida Statute § 847.011 on two grounds....
...860 expedited appeal or other measure of relieving suppressed expression from trial court error. Because this Court finds neither judicial observation prior to seizure nor an expedited appeal to be constitutionally required, the constitutionality of Section 847.011 will be upheld with regard to those particulars....
...temporary, the prior determination of probable cause based upon the viewing prevented gross abuse of First Amendment rights and the prompt hearing afterwards assured that in marginal cases those same rights would be properly safeguarded. Relevant to section 847.011, this Court sees no substantial differences as far as safeguarding First Amendment rights is concerned between the actual viewing of the film and the reading of the detailed affidavits....
...hampered by requiring the magistrate to personally view the film before authorizing its seizure. [7] Plaintiff's second assertion is that the Florida statute is constitutionally defective because it fails to provide for an expedited appeal. Although section 847.011(8)(b) and (c) provides for an expedited trial procedure, the statute makes no provision for expedited appellate consideration by the District Court of Appeals....
...ecision is made on the obscenity of particular material. [9] In the meantime, plaintiff alleges that the rights to freedom of expression are unduly suppressed. Because of the absence of provision for prompt appellate review, plaintiff concludes that section 847.011 is unconstitutional....
...The assurance of a "prompt final judicial decision" (
380 U.S. at 59 [
85 S.Ct. 734]) is made here, we think, by the guaranty of a speedy determination in the trial court . . .. See Teitel Film *863 Corp. v. Cusack,
390 U.S. 139 [
88 S. Ct. 754,
19 L.Ed.2d 966] (1968). Plaintiff argues that while section
847.011 may provide for sufficiently expedited proceedings in civil cases, the statute is silent on criminal proceedings and must fall for this reason....
...Amendment rights than in prosecutions wherein the ultimate rights of life and liberty are involved. The rules of criminal procedure have been deemed sufficient safeguards for the rights in the latter case. They are also sufficient in the former. As section 847.011 provides ample safeguards at the trial court level to assure proper sensitivity towards First Amendment rights this Court finds that neither the case law nor the constitution requires the statute to provide for expedited appeal....
...The constitutionality of the state will therefore be upheld. In summary, neither the failure to require an issuing officer to personally view a film before authorizing its seizure nor the failure to provide for expedited appellate consideration renders Florida Statute Section 847.011 unconstitutional. Therefore, it is Ordered: This case is hereby dismissed on the merits with prejudice at the cost of the plaintiff. NOTES [1] The challenged statute, Florida Statute section 847.011 (1967) reads in pertinent part as follows: 847.011 Prohibition of certain acts in connection with obscene, lewd, etc.; materials; penalty (8)(a) The circuit court has jurisdiction to enjoin a threatened violation of this section upon complaint filed by the state attorney or attorney for a mun...
...By stipulation, filed herein September 11, 1974, however, the issues were narrowed to two. [5] This finding is supported by the fact that defendants furnished plaintiff with a copy of the film upon request. See Heller, supra at 490,
93 S.Ct. 2789. [6] Florida Statutes section
847.011(8)(b) and (c)....
CopyCited 1 times | Published | Supreme Court of Florida
...Stone, General Counsel, American Association of University Professors, Champaign, Ill., for American Association of University Professors, amicus curiae. HATCHETT, Justice. We have for review a court order providing for the destruction of obscene materials after seizure, which upheld the validity of section 847.011(7), Florida Statutes (1975)....
...optional. In furtherance of an investigation conducted by the state attorney's office, Roberts voluntarily surrendered the film to the state's attorney. Later, the state moved the trial court to confiscate and destroy the film under the authority of section 847.011(7), Florida Statutes....
...g the state attorney to testify as to contemporary community standards; and, the effect of obscenity statutes on academic freedom. We decline to rule on any of these issues because we believe this case is resolved by our construction of the statute. Section 847.011(7) provides as follows: There shall be no right of property in any of the materials, matters, articles, or things possessed or otherwise dealt with in violation of this section, and upon the seizure of any such material, matter, artic...
...right against the unlawful seizure of his property guaranteed by article I, section 12, of the Florida Constitution and the fourth amendment to the Constitution of the United States. We find that no "seizure" was conducted as that term is used in subsection 847.011(7), and that the materials were therefore not properly brought before the trial court for an obscenity determination. Accordingly, we do not reach the constitutional challenges. To understand what the legislature meant by the use of the term "seizure" in subsection 847.011(7), we must first recognize how the subsection corresponds to the statutory scheme of which it is a part. Section 847.011(1)-(6) provides a thorough description of criminal conduct involving obscene materials. Subsection 847.011(7) has two substantive effects: (1) it declares that there is no property right in any materials possessed or otherwise dealt with "in violation of this section"; and, (2) it describes what is to be done with the seized materials after an adjudication on obscenity has been made. This subsection, then, is ancillary in nature. Its purpose is to state what becomes of allegedly obscene materials after a final determination has been made as to their obscene nature under section 847.011. The word "seizure" is used only to designate the time frame to which the subsection refers. The subsection does not define "seizure." To determine the meaning of the term "seizure" as contemplated by the legislature in subsection 847.011(7), we must therefore look to the well established body of case law defining the term in the obscenity context....
...petition for the confiscation and destruction of the film in March, 1978. We conclude that under these facts no "seizure" ever occurred in accordance with the test described above, and as contemplated by the legislature in its use of that term in subsection 847.011(7). Because there was no legitimate "seizure," the film was never properly brought before the trial judge for his adjudication as to its destruction. We condemn the procedure here for a second reason. As noted above, subsection 847.011(7) is ancillary in nature. Its provision as to the disposition of allegedly obscene material comes into play only when a trial judge has made a determination as to criminal conduct under subsections 847.011(1)-(6). The state's attorney in this case attempted to use subsection 847.011(7) to confiscate and destroy the film prior to a judicial determination of criminal conduct under subsections 847.011(1)-(6). Subsection 847.011(7) was not designed for this purpose. Accordingly, we hold that no "seizure" occurred as the term is used in subsection 847.011(7) and that the film did not properly reach the trial court for any final adjudication. We further hold that subsection 847.011(7) will not support an action for destruction of allegedly obscene materials apart from a prior adjudication of criminal conduct under subsections 847.011(1)-(6)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1993 WL 261745
...While judicial rewriting is prohibited, offending or meaningless words in a statute have been excised to preserve the constitutionality of a statute. In State v. Reese,
222 So.2d 732 (Fla. 1969) the supreme court considered the constitutionality of Florida's obscenity statute, section
847.011, Florida Statutes, which denounced the sale or possession of "any obscene, lewd, lascivious, filthy, indecent, immoral, sadistic, or masochistic literature." The court was troubled by the inclusion of the word "immoral" in the statute since it had been previously held to be unconstitutionally vague....
CopyCited 1 times | Published | District Court, S.D. Florida | 1999 U.S. Dist. LEXIS 15835
...ffensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (c) taken as a whole, is without serious literary, artistic, political, or scientific value for minors. " Fla. Statutes Ann. § 847.011(3) (West 1998) (emphasis added)....
CopyCited 1 times | Published | District Court, S.D. Florida
...that the officers sometimes seized films or trailers of films which were not set forth in the warrant being executed. The record is also clear, however, that each of the films seized was done so on a prior adjudication of obscenity. Florida Statute § 847.011(1)(a) makes the knowing exhibition of an obscene motion picture film a first degree misdemeanor. Section 847.011(2) provides that possession of an obscene film without intent to exhibit is a second degree misdemeanor....
CopyPublished | District Court of Appeal of Florida | 1981 Fla. App. LEXIS 21231
...in’s beverage license in jeopardy pursuant to section
561.29, Florida Statutes (1977). The hearing officer found that the Golden Dolphin had: (1) allowed one of its employees to perform a lewd, lascivious, indecent, or obscene show in violation of section
847.011(4), Florida Statutes (1977); (2) surrendered the control and management of the licensed premises through a management contract contrary to Florida Administrative Code Rule 7A-3.17; and (3) failed to keep copies of its invoices on its premises in violation of Florida Administrative Code Rule 7A-4.45....
...Both the United States Supreme Court and the Florida Legislature have declared that a decision as to whether something is obscene must be made with regard to community standards. Miller v. California,
413 U.S. 15 ,
93 S.Ct. 2607 ,
37 L.Ed.2d 419 (1973); Section
847.011(11), Florida Statutes (1977)....
CopyAgo (Fla. Att'y Gen. 2004).
Published | Florida Attorney General Reports
destruction guidelines for various records.13 Section
847.011(7), Florida Statutes, relating to possession
CopyPublished | Supreme Court of Florida | 2 A.L.R. 4th 1325, 1976 Fla. LEXIS 4510
authoritatively interpreted in the Jones case. Section
847.011, Florida Statutes (1975), another statute in
CopyPublished | District Court of Appeal of Florida | 1966 Fla. App. LEXIS 4823
...Relator was charged by the City of Dania in count I of disorderly conduct in violation of F.S.A. §
877.03, which in turn violated section 20-16 of ordinance 340 of the Dania Code of Ordinances. 1 The second count charged possession and showing of obscene films in violation of F.S.A. §
847.011, which in turn violated section 20-16 of the same Dania ordinance, supra....
...The City of Dania has authority to adopt by reference all present and future misdemeanors recognized by the State of Florida. We further hold that relator has failed to demonstrate that both counts wholly fail to charge violations of F.S.A. §
877.03 and F.S.A. §
847.011....
CopyPublished | District Court, M.D. Florida | 1969 U.S. Dist. LEXIS 13763
...film by the seizure and *328 continued detention of the film, and that a showing of irreparable harm has been made. By this ruling, this Court suggests no opinion with reference to the merits of the question of obscenity or the constitutionality of § 847.011 Florida Statutes, F.S.A., on its face or as applied, but merely preserves a status quo until a hearing can be held on the merits to determine the propriety of a preliminary injunction....
CopyPublished | District Court of Appeal of Florida | 1975 Fla. App. LEXIS 15356
OWEN, Judge. After misdemeanor charges against him for showing obscene films in violation of Fla.Stat. § 847.011(4) (1973) were nolle prossed, appellee-relator sought the return of the films (the subject of the charges) which had been seized by the State. The county court held that it could not return the films until it had had an opportunity to view them in order to determine whether they were obscene and whether they therefore ought to be destroyed in accordance with Fla.Stat. § 847.011(7) (1973), which provides: “(7) There shall be no right of property in any of the materials, matters, ar- *625 tides, or things possessed or otherwise dealt with in violation of this section, and upon the sezure of any such material, mat...
...le of conferring jurisdiction on the court. While the entry of the nolle prosequi might have deprived the court of jurisdiction to prosecute this particular defendant, it did not, and could not, deprive the court of its statutorily conferred — per § 847.011(7) — jurisdiction over the evidence. We think the procedure set out in § 847.011(7) is clear....
...That disposition will rest upon the court’s determination, after notice and hearing, of whether or not the material has been “possessed or otherwise dealt with in violation of this section.” The Florida Supreme Court has upheld the constitutionality of § 847.011 and specifically determined subsection (7) to be remedial in nature and within the State’s police power....
CopyPublished | District Court, M.D. Florida | 1969 U.S. Dist. LEXIS 8797
...ts out that the question of obscenity is better left to the judicial officer who is trained in the process of weighing evidence and making legal decisions. This ruling suggests no opinion on the question of the constitutionality of Florida Statutes, Section 847.011(7), F.S.A., under attack here, as that matter is properly for the determination of a three-judge court....
CopyPublished | Supreme Court of Florida | 1971 Fla. LEXIS 3718
PER CURIAM. The appellants, John C. Martin and Clarence Howard Cantey, were convicted in the County Judge’s Court in and for Bay County, Florida, for violation of Section 847.011, Florida Statutes, F.S.A....
...mposition. We have jurisdiction to review these judgments and sentences by virtue of the provisions of Article V, Section 4 of the Constitution of the State of Florida, F.S.A., for the reason that the trial court passed directly upon the validity of Section 847.011, Florida Statutes, F.S.A....
CopyPublished | District Court of Appeal of Florida | 1972 Fla. App. LEXIS 6771
PER CURIAM. We are presented with a petition for cer-tiorari to review the affirmance in the circuit court of petitioner’s conviction of knowingly selling obscene magazines in violation of Fla.Stat. § 847.011, F.S.A....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Oct 9, 2024
...d or lascivious exhibition,”
Fla. Stat. §
800.04(7), and vulgar or indecent “exposure of sexual organs,” Fla.
Stat. §
800.03, to bans on “obscene show[s] . . . by a live person before an au-
dience,” Fla. Stat. §
847.011(4), distribution of “obscene material to a minor,”
Fla....
...statutes didn’t already ad-
dress. So whatever the scope of the Act’s proscriptions, they likely
extend beyond the obscenity statutes that FDBPR already previ-
ously enforced against drag shows. See, e.g., Fla. Stat. §§
847.011
(“Prohibition of certain acts in connection with obscene, lewd, etc.,
materials”),
847.0133 (“Protection of minors; prohibition of certain
acts in connection with obscenity”)....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Oct 9, 2024
person before an au- dience,” Fla. Stat. §
847.011(4), distribution of “obscene material to a minor
CopyPublished | District Court of Appeal of Florida | 1963 Fla. App. LEXIS 3602
...above matter dealing with the unconstitutionality of F.S. 847.-011, reserving other grounds of appeal raised.” .The stipulation contained the following: “1. That the appellant’s issue presented to the Court relating to the constitutionality of Section 847.011, Florida Statutes, is disclaimed not alive and is withdrawn from review....
CopyPublished | District Court, N.D. Florida | 1970 U.S. Dist. LEXIS 12584
...rom prosecuting all criminal actions pending against plaintiffs, to enjoin defendants from further arrests and harassment pursuant to their enforcement and execution of Panama City, Florida, City Ordinance Section 16-44 and Florida Statutes Sections
847.011 and
847.03, F.S.A., to enjoin defendants from further violation of those rights, privileges and immunities guaranteed to plaintiffs by the Constitution and laws of the United States, and to compel defendants to return instanter those material...
...d on bond. Returning to his store on the afternoon of February 28, plaintiff Cantey reopened for business and later that same evening was again arrested and taken into custody by the Bay County Sheriff’s Department for violation of Florida Statute 847.011 and again released on bond....
...failed to persuade the Court that irreparable injury will result if the pending state prosecutions are allowed to continue further. It should be observed at the outset that the constitutionality of the particular statute challenged, Florida Statute 847.011, F.S.A....
CopyPublished | District Court of Appeal of Florida | 1972 Fla. App. LEXIS 7123
...scenity of the film. In paragraph numbered six of the “ordered” portion of the judgment, the court enjoined the defendants “from showing or exhibiting any other motion picture films or trailers which are obscene and contrary to Florida Statute 847.011 [F.S.A.] at any of the aforesaid theatres or at any other place or premises within the 11th Judicial Circuit of Florida where the public is permitted.” That blanket injunction provision of the judgment is not proper....
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 16109
...By this appeal we are asked to review the propriety of a civil contempt order *916 entered in the Circuit Court for the Eleventh Judicial Circuit of Florida based on a violation of a prior court order which had enjoined the showing of the film “Deep Throat” on grounds of obscenity under Section 847.011, Florida Statutes (1977)....
CopyPublished | District Court of Appeal of Florida | 1969 Fla. App. LEXIS 5558
...On Friday, 20 September 1968, the county solicitor for Palm Beach County, Florida, brought suit in the Circuit Court for Palm Beach County against South Florida Art Theaters, Inc., Betty Henn, its president, and Harry Turbeyfill, its treasurer. The suit was filed pursuant to F.S. 1967, Section 847.011(7), F.S.A., to enjoin the said defendants from showing an allegedly obscene motion picture....
...dency of the case. Pursuant to the order, the defendants appeared on 23 September and presented a motion to dismiss the temporary restraining order. The motion to dismiss was predicated on the following grounds: (1) the motion picture is exempt from Section 847.011 by the operation of subsection (9) thereof; (2) Section 847.011 violates the First Amendment of the United States Constitution; (3) Section 847.011 is void for vagueness and, therefore, violates the Fourteenth Amendment of the United States Constitution; (4) Section 847.011(10) is unconstitutional in that it does not provide a proper definition of “obscenity”; and (5) the complaint sets forth only conclusions of the pleader; therefore, the temporary injunction based thereon was not based on the reaso...
...ving the temporary restraining order is denied.” An interlocutory appeal has been taken from that order. The defendants basically argue three points. They are: Point 1. The motion picture film which was the subject of the complaint was exempt from Section 847.011 by operation of subsection (9) thereof. Point 2. Section 847.011 is void because the standard provided for the determination of obscenity is without a sufficient degree of definiteness and is so broad that it reaches constitutionally protected publications. Point 3. The procedure employed by the trial court in granting the ex parte temporary restraining order infringed the defendants’ constitutional right of free speech. The defendants in their brief concede that motion pictures are covered by Section 847.011, but argue that commercial movie theaters are exempt from Section 847.011 by the operation of subsection (9) thereof which provides that, “This section shall not apply to the exhibition of motion picture films permitted by § 521.02.” F.S....
...ed and approved by the National Board of Review of Motion Pictures, Inc. or the Film Estimate Board of National Organizations, or has been licensed by the State Department of Education of the State of New York. It is clear from the plain language of Section 847.011(9) and Section 521.02 that the legislature intended to exempt from the obscenity statute any film approved by one of the organizations specified in Section 521.02....
...There is no basis in the statute to support the defendants’ contention that all films shown in commercial theaters are exempt from Section 847.-011 and there is no basis in the record to indicate that the particular film here involved was within the standards of Section 521.02 and, therefore, exempt from Section 847.011(9). For this reason we conclude that the first point is without merit. Subsection (l)(a) of Section 847.011 in its pertinent parts provides: A person who knowingly * * * shows or * * * offers to * * * show * * * or has in his possession * * * with intent to * * * show * * * any obscene * * * motion picture film * * * is guilty of a misdemeanor * * *.” *709 The fine provided is $1,000.00 or one year in jail or both....
...The very argument raised by defendants here was raised by the appellee in the Reese case, supra, and rejected. The pertinent language from the Reese case is as follows: “The appellee contends that these decisions have so modified the Roth test as to amount to an abandonment thereof, and that Subsection (10) of § 847.011 is therefore ‘unconstitutional.’ It appears to us, however, that a determination of the question of whether or not the Roth test has been abrogated by the United States Supreme Court will have no effect whatsoever on the question of the validity of the statute, § 847.011(2), which the appellee was charged with violating....
...There can he no doubt that prosecutions under an obscenity statute may be initiated and tried under a court-adopted standard of obscenity as well as under a legislatively prescribed one. See Roth v. United States, supra. The addition of Subsection (10) to § 847.011 was *710 merely a legislative declaration of a judicial rule that had already been adopted by the courts of this state....
...judicial resolittion.” Also significant to our decision is the recognition by the Supreme Court in Freedman, supra, that, “films differ from other forms of expression.” We must look at the procedure employed by the trial court under F.S.1967, Section 847.011(7), F.S.A., to determine whether or not it collided with the principles of the cited cases and particularly with the principle that state procedure for the regulation of obscenity must ensure against the curtailment of constitutionally protected expression and focus searchingly on the question of obscenity. The procedure which was employed with respect to the issuance of the temporary injunction must not be viewed in isolation, but must be considered as a part of the total procedure authorized by F.S.1967, Sec *713 tion 847.011, F.S.A....
...n of the case. This hearing was set for the next business day following the day on which the order was issued. Finally, it should be noted that the restraining order was not issued until after the complaint had been filed; therefore, under F.S.1967, Section 847.011 (7) (c), F.S.A., the defendants could have filed an answer and secured a trial of the issues within one day and a final decision within two days after the conclusion of the trial....
CopyPublished | District Court of Appeal of Florida | 1974 Fla. App. LEXIS 6785
MAGER, Judge. The State of Florida appeals an amended final judgment entered in a civil proceeding involving the enforcement of the state’s obscenity law (Section 847.011, Florida Statutes, F.S.A.). The State, plaintiff below, filed a complaint seeking to enjoin Samscot Enterprises, defendant below, from exhibiting certain allegedly obscene motion picture films. The complaint was filed pursuant to Section 847.011(8) (a), which section provides for a civil method of enforcing the obscenity statute. Specifically, the circuit court is vested with the jurisdiction to enjoin a threatened violation of F.S. Section 847.011, F.S.A....
...The State takes the position in this’ appeal that having found the films in question to be obscene as a matter of law, it was error for the court to deny the State’s prayer for a permanent injunction (and ultimate destruction of the obscene material). See F.S. Section 847.011(8) (d), F.S.A....
...quent destruction of the “contraband”. This brings us to the somewhat difficult proposition of whether a trial court is empowered to withhold injunctive relief once having declared the films to be “obscene as a matter of law”. Our reading of Section 847.011 (and what we perceive to be the legislative intent in its enactment) would suggest that injunctive relief follows a declaration of obscenity and is a concomitant thereof. To arrive at a determination of obscenity within the applicable legal tests but to stop short of permanent injunction would, in our view, defeat the purposes and intent of Section 847.011, namely, to restrict and destroy the exhibition and use of obscene material. A determination of obscenity with nothing more would be tantamount to a judicial advisory opinion, without force and effect. The civil remedy contained in Section 847.011 would be meaningless, if it merely provided a forum for the determination of obscenity vel non without enforcement....
...To the extent that the pleadings allege a continual exhibition or showing such allegations are surplusage in terms of entitlement to permanent injunctive relief where the materials are declared “obscene as a matter of law”. . With respect to the contention as to the validity of Section 847.011, in our view this issue has been laid to rest in Rhodes v....
CopyPublished | District Court of Appeal of Florida | 1979 Fla. App. LEXIS 14802
HOBSON, Judge. Appellant, Wayne Charles Schergen, appeals from his conviction of thirty-one counts of possession of obscene materials with intent to distribute in violation of Section 847.011, Florida Statutes (1975)....
CopyPublished | Supreme Court of Florida | 1975 Fla. LEXIS 3538
materials in violation of Florida Statute Section
847.011. The offenses allegedly occurred during the
CopyPublished | Supreme Court of Florida | 1971 Fla. LEXIS 3563
...relief against the possession and sale by appellant *881 May of four identified publications alleged to be obscene under Fla.Stat. § 847.01, F. S.A. In its Final Judgment relating to the cause, the Court of Record of Escambia County found Fla.Stat. § 847.011, F.S.A., to be constitutional insofar as it related to the sale or distribution of obscene materials....
...There were no ex parte actions in the proceedings below. The Final Judgment arose out of a prior adversary hearing held in advance of a judicial determination of obscenity as to specifically identified publications. Recently we have described this procedure in relation to Fla.Stat. § 847.011, F.S.A., as constitutionally sound and as presenting an eminently acceptable forum for the determination of obscenity....
...witnesses for plaintiff and defendants and having examined the magazines admitted into evidence and having heard argument of counsel and being fully advised in the premises, it is therefore: “ORDERED, ADJUDGED and DE-. CREED as follows: “1. That Section 847.011, Florida Statutes, F.S.A., insofar as it relates to the sale or distribution of obscene materials, is constitutional. “2. That the magazines, ‘Young Stuff,’ ‘Lovers No. 2/ ‘Bristles & Lace’ and ‘Busy Body,’ and each of them, as introduced into evidence, be and each of them is hereby declared to be lewd and obscene within the prohibition of Section 847.011 in that the dominant theme of each taken as a whole to the average person applying contemporary community standards appeals to prurient interests in sex and is'patently offensive because each affronts contemporary community standards...
...t this is a contention without merit. The Roth-Memoirs tests were applied by the Court of Record after the benefit of community standards’ testimony and its judgment was reached in accordance with the law. Appellants further contend that Fla.Stat. § 847.011, F.S.A., is unconstitutional because it does not provide for a prompt final judicial determination of obscenity on appeal....
CopyPublished | Supreme Court of Florida | 1976 Fla. LEXIS 4481
Record in and for Pinel-las County of violating Section 847.-011(l)(a), Florida Statutes (1975), which proscribes
CopyPublished | Supreme Court of Florida | 1969 Fla. LEXIS 2233
PER CURIAM. The foregoing three cases consolidated here are direct appeals from decisions of the trial Court holding unconstitutional Section 847.011,....
CopyPublished | District Court of Appeal of Florida | 1971 Fla. App. LEXIS 6978
SPECTOR, Judge. This is an interlocutory appeal seeking reversal of an interlocutory order enjoining appellants from selling obscene literature and enjoining appellants from conducting the business of selling obscene literature in violation of Section
847.011, Florida Statutes, F.S.A., and further holding that said conduct by appellants constituted a public nuisance within the purview of Section
823.05, Florida Statutes, F.S.A....
...y them that they had no materials of a character other than that which was considered by the trial court. See South Florida Art Theaters, Inc. v. State ex rel. Mounts,
224 So.2d 706 (Fla. App.1969), upholding issuance of an ex parte injunction under Section
847.011(7), Florida Statutes, F.S.A....
CopyPublished | Florida 5th District Court of Appeal | 10 Fla. L. Weekly 111, 1985 Fla. App. LEXIS 11830
...See Miller v. California,
413 U.S. 15 ,
93 S.Ct. 2607 ,
37 L.Ed.2d 419 , reh’g denied,
414 U.S. 881 ,
94 S.Ct. 26 ,
38 L.Ed.2d 128 (1973); Golden Dolphin No. 2, Inc. v. State, Division of Alcoholic Beverages & Tobacco,
403 So.2d 1372 (Fla. 5th DCA 1981); §
847.011(11), Fla.Stat.(1981)....
CopyPublished | District Court of Appeal of Florida | 1972 Fla. App. LEXIS 7415
SWANN, Chief Judge. Defendants appeal from a permanent injunction issued pursuant to § 847.011(7), Fla.Stat., F.S.A. On appeal defendants argue that Florida obscenity statute [§ 847.011, F.S.] is unconstitutional....
...In addition, a defendant is ordinarily not entitled to a jury trial in an action in equity which seeks an injunction to abate a nuisance, and the statute under which this action was brought specifically authorizes the Circuit Court *914 Judge to grant such an order. See § 847.011(7) (a, b and c) Fla.Stat., F.S.A. It is not necessary, in our opinion, to prove claims in an action seeking equitable relief under § 847.011(7) Fla.Stat., F....
...859 ,
82 S.Ct. 949 ,
8 L.Ed.2d 18 . We find no error under these two claims of the defendants. Defendant’s assertion that a special assistant attorney general does not have any legal authority to file a complaint and litigate a civil case under Chapter
847.011 is without merit as the complaint herein reveals the signature of Richard E....
CopyPublished | Supreme Court of Florida | 2012 WL 399879
...this offense. Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment This instruction was adopted in 2011, 24.6 PROHIBITION OF CERTAIN ACTS IN CONNECTION WITH OBSCENE MATERIALS — PROMOTING OR PERFORMING § 847.011(4), Fla.Stat....
CopyPublished | District Court of Appeal of Florida
...Conkling (Bishop), which appellant rejected as being legally insufficient. It cannot be gainsaid that they do not support all of the factual allegations made by appellees. Further, their worth is not helped by the very general and restrained language employed. Appellees were charged under F.S.A. § 847.011(1) (a), having to do with certain obscene photographs and materials....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 521, 1988 Fla. App. LEXIS 766, 1988 WL 12520
PER CURIAM. The state appeals an order dismissing an information which charged the defendant with a felony obscenity offense, pursuant to section 847.011(l)(a), Florida Statutes (Supp.1986). The trial court dismissed the information for want of subject matter jurisdiction, and we affirm. Upon the state’s filing of felony charges for violation of section 847.011 (obscenity statute), Gayety Theatres filed a motion to dismiss....
...arceny statute creates a substantive offense distinguishable from the enhancement statute. The rub in the present case is that while the criminal information at issue is titled a felony, no prior conviction is alleged, nor does the information track section 847.011(l)(a)....
...sdiction. Young v. State,
439 So.2d 306 (Fla. 5th DCA 1983); Christopher v. State,
397 So.2d 406 (Fla. 5th DCA 1981); §
26.012(2)(d), Fla.Stat. (1985). Our affirmance, therefore, acknowledges the state’s ability to allege a felony based solely on section
847.011 within the jurisdiction of the circuit court....
CopyPublished | District Court of Appeal of Florida | 1977 Fla. App. LEXIS 16981
...The State Attorney for the Ninth Judicial Circuit filed a sworn Complaint for Injunction and Temporary Restraining Order against Appellants, alleging that appellants were exhibiting three obscene films entitled, “Deep Throat,” “Devil in Miss Jones” and “Glady’s [sic] and Her All Girl Band,” in violation of Section 847.011, Florida Statutes (1975)....
...The complaint further alleged that all three films depicted numerous patently offensive sexual acts between male and female which the complaint describes in explicit detail. Based upon the State’s complaint, on October 27, 1976, the trial court entered a temporary restraining order pursuant to Section 847.011(8)(b), Florida Statutes (1975), enjoining appellants from showing the described films until further order of the court....
...ent that a judicial officer make a judicial determination of obscenity before any seizure of the alleged obscene material takes place. Ellwest Sterro Theaters, Inc. v. Nichols,
403 F.Supp. 857 (M.D.Fla.1975). In Ellwest a three judge panel held that Section
847.011, Florida Statutes, is not unconstitutional because it allows seizure of materials alleged to be obscene without an adversary hearing prior to seizure and without a judicial inspection of the materials....
CopyPublished | District Court, S.D. Florida | 1970 U.S. Dist. LEXIS 9064
...of their First and Fourteenth Amendment rights and an unwarranted interference with the operation of their businesses. The complaint prayed for the convening of a three-judge court, 28 U.S.C. § 2281 , et seq., and a declaration that Florida Statute 847.011, F.S.A., the Florida obscenity prohibition statute, is unconstitutional on its face, or in the alternative, as applied....
...On January 3, 1970, the cause came before the three-judge court pursuant to plaintiffs’ request. At that time the panel concluded that from a reading of the complaint plaintiffs were aggrieved not by any constitutional defect in the statute, Florida Statute 847.011, but rather by the defendant’s alleged lawless exercise of authority, a matter not within the jurisdiction of the three-judge court....
CopyPublished | District Court of Appeal of Florida | 1974 Fla. App. LEXIS 7324
...shorts. The affiant Bowers then describes the contents of these films in detail; but generally stated, it referred to various types of sex acts. Based upon the affidavit of Sergeant Bowers that he had reason to believe that there was a violation of § 847.011, Fla.Stat., F.S.A....
...s in possession thereof, was arrested. Thereafter, on January 24, 1974 an information was filed wherein U & L Theaters, Inc. and Mario Jose Calatayud were charged with unlawful possession of obscene films with intent to show same in violation of § 847.011, Fla.Stat., F.S.A....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 2771, 1989 Fla. App. LEXIS 6713, 1989 WL 145750
...rida Statutes (1987). Specifically, it was charged in each information that appellant presented to a child a photograph of his genitalia. Appellant filed a sworn motion to dismiss, arguing that the alleged conduct actually constitutes a violation of section
847.011, but not section
800.04(3)....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 5681, 1990 WL 108841
...had been held unconstitutional in 1986. Several months later, the City filed a Supplemental Memorandum of Law in Support of its Motion for Summary Judgment asserting that the arresting officers had probable cause to arrest Ms. Heller under sections
847.011(4) and
847.001(11), Florida Statutes (1987)....
...nder Florida law. The summary final judgment on Counts II and III of the complaint is reversed. AFFIRMED in part; REVERSED in part. COWART, J. and ORFINGER, M„ Associate Judge, concur. . It appears that the possibility of arresting appellant under section 847.011(4), Florida Statutes, was suggested by the trial judge at an earlier hearing.
CopyPublished | District Court of Appeal of Florida | 1973 Fla. App. LEXIS 6330
the offense with which Basilone was charged Section
847.011 had been authoritatively construed in the case
CopyPublished | Florida 1st District Court of Appeal | 1977 Fla. App. LEXIS 15843
...The appellant, brings this appeal from the circuit court’s order denying a writ of prohibition challenging that the appellant had not been brought to trial within 90 days as required by Fla.R.Crim.P. 8.191(a)(1). The appellant was arrested on several charges of selling obscene materials, in violation of Florida Statute 847.011 (1975), each charge a misdemeanor....
CopyPublished | District Court of Appeal of Florida | 1972 Fla. App. LEXIS 6960
judgment based upon a complaint filed under section
847.011 of the Florida Statutes that the defendants’
CopyPublished | Florida 5th District Court of Appeal
PER CURIAM. Appellant was charged with and adjudicated delinquent of three counts of possessing with intent to transmit or show obscene matter, in violation of section 847.011(l)(a) & (c), Florida Statutes (2012)....
CopyPublished | Florida 2nd District Court of Appeal | 1990 Fla. App. LEXIS 2680, 1990 WL 48617
PER CURIAM. The state appeals a dismissal of an information alleging the possession or distribu-tion of obscene materials in violation of section 847.011, Florida Statutes (1987). The dismissal was based on a finding that the statute was unconstitutional. This court has subsequently upheld the constitutionality of section 847.011 in State v....
CopyPublished | Florida 2nd District Court of Appeal | 1990 Fla. App. LEXIS 2760, 1990 WL 48616
PER CURIAM. The State of Florida appeals the dismissal of an information against the appellee, Jack Humphrey. Humphrey was charged with violating section 847.011, Florida Statutes (1987), by possessing or distributing obscene materials....
...The trial court found the statutory definition of obscenity unconstitutionally vague and the statute a violation of the right of privacy guaranteed by the Florida Constitution. We reverse. The order of dismissal was entered on December 15, 1988. This court subsequently upheld the constitutionality of section 847.011, on both grounds raised in this appeal in State v....
