ROBERT MITCHUM, DAVE BALLUE, CLARENCE HOWARD CANTEY, A BUSINESS KNOWN AS THE BOOK MART, A CERTAIN PORTION OF LAND AND BUILDING LOCATED AT 19 HARRISON AVENUE, PANAMA CITY, FLORIDA, AND ALL OTHER PERSONS CLAIMING ANY RIGHT, TITLE OR INTEREST IN THE PROPERTY AFFECTED BY THIS ACTION, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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Appellants sought supersedeas (stay) of a preliminary injunction prohibiting operation of The Book Mart, an adult bookstore alleged to be selling obscene materials. The trial court denied the motion for supersedeas, and the appellate court affirmed, finding the trial court properly exercised its discretion in refusing to stay the injunction pending appeal.
The trial court did not abuse its discretion in denying supersedeas. Based on the trial court's findings that the business was selling obscene materials injurious to public morals and constituting a public nuisance, the denial of the supersedeas motion fell well within the trial judge's discretionary authority and was neither arbitrary, unreasonable, nor capricious.
[1] The decision to grant or deny supersedeas pending an interlocutory appeal rests within the sound discretion of the trial judge.
[2] An appellate court may review and overturn a lower court's refusal to grant supersedeas if the denial is found to be arbitrary, unreasonable, or otherwise improper.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“F.A.R. 5.1, 32 F.S.A. provides that the question of supersedeas pending interlocutory appeal is one within the sound discretion of the trial judge.”
Establishes the legal standard that trial courts have discretionary authority over supersedeas motions.
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Join FLexlaw to unlock all legal intelligenceThe trial court issued a temporary injunction against appellants operating The Book Mart at 19 Harrison Avenue in Panama City, Florida, finding that t…
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ON MOTION TO REVIEW ORDER DENYING MOTION FOR SUPERSEDEAS
Appellants seek review and reversal of an order entered by the trial court denying appellants’ . motion for supersedeas pending determination of an interlocutory appeal to review an order entered against them by the trial court by which appellants are enjoined from operating and maintaining a business known as The Book Mart in Panama City, Florida. F.A.R. 5.1, 32 F.S.A. provides that the question of supersedeas pending interlocutory appeal is one within the sound discretion of the trial judge. F.A.R. 5.10 provides that where the lower court refuses to grant a supersedeas or stay, as has occurred in the case at bar, the said refusal may be reviewed and overruled, modified or discharged by the appellate court if the order denying supersedeas is determined to be arbitrary or unreasonable or is for any other reason improper.
ín the lower court’s temporary injunction order, the following recitation appears :
“On the basis of evidence submitted, this Court concludes preliminarily that the defendants’ objective at 19 Harrison Avenue, Panama City, Florida is the selling of obscene, lewd and indecent material for profits (the court notes the apparent exorbitant prices at which these publications are offered for sale), to paying customers who have a perverted, abnormal or morbid sexual curiosity and erotic appetite. That the activities of the defendant at 19 Harrison Avenue, Panama City, Florida are prima facie, injurious and damaging to the morals and manners to the people of the State of Florida and are prima facie subversive to public order and decency and prima facie constitute a public nuisance. Plaintiff has demonstrated prima facie irreparable harm and damage to the morals and welfare and safety of the people of the State of Florida.”
The above paragraph is preceded by findings which describe the nature of the materials submitted to the trial judge as being representative of the books and magazines being sold by appellants.
In view of -the court’s findings of fact and conclusions as above set out, it cannot be said that the lower court acted arbitrarily, unreasonably or capriciously in denying appellants’ motion for supersedeas pending this interlocutory appeal. The trial judge’s denial of supersedeas fell well within the discretionary authority reposed in him by F.A.R. 5.1.
Appellants having failed to demonstrate error in the order being reviewed, the motion for supersedeas is denied.
JOHNSON, C. J., and RAWLS, J., concur.
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Mitchum v. State, 251 So. 2d 298 (Fla. 1st DCA 1971)…aracter. The order under review was entered in connection with the enforcement of Chapter 847, Florida Statutes, F.S.A., the state obscenity and pornography laws. Earlier decisions have been rendered by this court in this case which are reported at 234 So. 2d 420, 237 So. 2d 72, and 244 So. 2d 159. Reference to these decisions will afford additional factual background which may be of interest to the reader. The first point on appeal is as follows: “The State of Florida must produce affirmative evidence that…
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Mitchum v. State, 237 So. 2d 72 (Fla. 1st DCA 1970)…s District Court for the Northern District of Florida and the Circuit Court of the Fourteenth Judicial Circuit in and for Bay County, Florida. An earlier motion for supersedeas was denied by this court on April 21, 1970, which opinion is reported at 234 So. 2d 420. At that time, however, no representations were made regarding a collision between the state and federal courts as is now asserted. The state trial court found in its interlocutory order of April 6, 1970, that the appellants are in the business of…
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Mitchum v. State, 244 So. 2d 159 (Fla. 1st DCA 1971)…ent; however, the force and effect of that judgment was rendered a nullity by an order staying the same entered by Justice Black on August 31, 1970. For a further elucidation of the facts involved in this controversy, we also cite Mitchum v. State, 234 So. 2d 420, 421. The interlocutory order reviewed herein is affirmed and this appeal is dismissed. WIGGINTON, Acting C. J., and CARROLL, DONALD K., J., concur.…