JOHN C. MARTIN, APPELLANT, STATE OF FLORIDA, APPELLEE; CLARENCE HOWARD CANTEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Martin and Cantey were convicted of selling obscene publications under Florida law. The Florida Supreme Court affirmed Martin's convictions and sentences, but quashed Cantey's sentences and remanded for a hearing on his ability to pay fines in light of the U.S. Supreme Court's decision in Tate v. Short.
The Court affirmed the judgments of conviction for both appellants but quashed and set aside Cantey's sentences. The trial court was directed to conduct an evidentiary hearing on Cantey's ability to pay the fines and impose appropriate sentences in light of Tate v. Short.
[1] A court has jurisdiction to review a judgment and sentence when the trial court passed directly upon the validity of a statute.
[2] Judgments of conviction for violating a statute prohibiting obscene publications and profanity are affirmed.
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Join FLexlaw to unlock all legal intelligence“The record is silent as to whether this appellant stated his indigency before sentence or whether the trial court inquired into the financial ability of the appellants to pay the fines imposed before or at the time of their imposition.”
Establishes the key deficiency in Cantey's case—the trial court's failure to consider his ability to pay fines before sentencing.
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Join FLexlaw to unlock all legal intelligenceJohn C. Martin and Clarence Howard Cantey were convicted in Bay County, Florida, of violating Section 847.011, F.S.A., for selling or distributing obs…
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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. (included in F.S. chapter 847, F.S.A., dealing with obscene publications and profanity). Martin was convicted by a jury under three separate counts and Cantey under ten separate counts of selling or distributing obscene publications in Bay County, Florida.
The trial court imposed sentence upon each count of a fine of $500.00 or six months imprisonment, such alternative sentences to run consecutively. Martin paid his fines totaling $1,500.00 and was released from custody. Cantey did not pay the fines totaling $5,000.00 and subsequently was released from custody upon the posting of a $5,000.00 supersedeas bond. After *644filing these appeals from the judgments of conviction and sentences thereon, the appellant, Cantey, filed an affidavit of indigency in this court stating his inability to pay the fines imposed upon him. The record is silent as to whether this appellant stated his indigency before sentence or whether the trial court inquired into the financial ability of the appellants to pay the fines imposed before or at the time of their imposition.
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. We affirm the judgments of conviction of both appellants. State v. Reese (Fla.1969) 222 So.2d 732; State ex rel. Hallowes v. Reeves, State ex rel. Hallowes v. Rachleff, and State ex rel. Hallowes v. Kouroupis (Fla.1969) 224 So.2d 285; South Florida Art Theaters, Inc. et al v. State of Florida ex rel. Marvin • U. Mounts, Jr., etc. (Fla.App., Fourth District, 1969) 224 So.2d 706; Collins v. State Beverage Department (Fla.App., First District, 1970) 239 So.2d 613; Mitchum v. State (Fla.App. First District, 1971) 244 So.2d 159; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Levin v. State, 1 Md.App. 139, 228 A.2d 487, cert. den. 389 U.S. 1048, 88 S.Ct. 767, 19 L.Ed.2d 840; Milky Way Productions, Inc. v. Leary, (D.C.S.D.N.Y.1969), 305 F.Supp. 288, affirmed 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed. 2d 78, (1970); Gable v. Jenkins, (D.C.N.D. Ga.1969), 309 F.Supp. 998, affirmed 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed.2d 595, (1970).
The sentences imposed upon the appellant, Martin, are affirmed. We quash and set aside the sentences imposed upon the appellant, Cantey, and relinquish jurisdiction to the County Judge’s Court of Bay County, Florida, with directions that the trial court conduct an evidentiary hearing upon the question of the ability of said appellant to pay the fines imposed upon him, and thereafter to impose such sentences as shall be appropriate in light of the recent decision and opinion of the Supreme Court of the United States in Tate v. Short, decided on March 2, 1971, and reported in 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130.
It is so ordered.
ROBERTS, C. J., BOYD and McCAIN, JJ., and MASON, Circuit Judge, concur.
ERVIN, J., concurs in the conclusion.
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Outar v. State, 508 So. 2d 1311 (Fla. 5th DCA 1987)…alizes a person for poverty and is a denial of equal protection of law for indigent persons. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); Martin v. State, 248 So. 2d 643 (Fla.1971). Because of the application of this more fundamental principle, the ex post facto argument is actually immaterial because it is unconstitutional to penalize an indigent if he cannot pay money (fine or costs) whether the statute imposing…
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Mitchem v. State of Fla. ex rel Frank Schaub, 250 So. 2d 883 (Fla. 1971)…aspects of the proceedings, and the validity of the injunctions issued by the Circuit Court. We think the statute is secure as against a general attack on its constitutionality. State v. Reese, 222 So. 2d 732 (Fla.1969); Martin v. State of Florida, 248 So. 2d 643 (Fla.1971). The ruling of the Circuit Court on this question is hereby affirmed. But we defer from treating specific constitutional arguments because we find that as a matter of law the proceedings below were constitutionally defective. The [*885]…
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Phillips v. Allen, 255 So. 2d 528 (Fla. 1971)…son Farm. He then petitioned for a writ of ha-beas corpus on the contention that he was forced to choose jail solely on account of his indigency, in violation of Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed. 2d 130 (1971) and Martin v. State, 248 So. 2d 643 (Fla.1971). This Court granted the writ and dispensed with the return. We then relinquished jurisdiction temporarily to the Municipal Court of Orlando so that it could consider the nature of the fines imposed in light of Tate and Martin. In conseque…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Roth v. United States, 354 U.S. 476 (U.S. 1957)
- Tate v. Short, 401 U.S. 395 (U.S. 1971)
- Hayes v. Adobe Brick & Supply Co., 222 So. 2d 732 (Fla. 1969)
- NEW York Feed Co., Inc. v. Leary, 397 U.S. 98 (U.S. 1970)
- Levin v. Maryland, 389 U.S. 1048 (U.S. 1968)
- Collins v. State Bev. Dep't of Fla., 239 So. 2d 613 (Fla. 1st DCA 1970)
- Gable v. Jenkins, 397 U.S. 592 (U.S. 1970)
- S. Fla. ART Theaters, Inc. v. State of Fla. ex rel. Marvin U. Mounts, Jr., 224 So. 2d 706 (Fla. 4th DCA 1969)
- John H. Kehl for Kelda Land Tr. v. Fewell, 224 So. 2d 706 (Fla. 3d DCA 1969)
- Mitchum v. State, 244 So. 2d 159 (Fla. 1st DCA 1971)