JOSEPH GEORGE FONTANA AND DAVID M. CRICHTEN, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Supreme Court reversed convictions of two defendants for selling obscene magazines under Florida Statutes § 847.011, holding that their convictions must be reconsidered in light of the U.S. Supreme Court's Miller v. California obscenity standards, which apply retroactively to cases on direct appeal.
The court reversed the conviction and remanded for new proceedings in which the three-part Miller obscenity standards should be applied: (1) whether the average person, applying contemporary community standards, would find the materials appeal to the prurient interest as a whole; (2) whether the materials depict or describe sexual conduct in a patently offensive way as specifically defined by state law; and (3) whether the materials, taken as a whole, lack serious literary, artistic, political, or scientific value.
[1] Convictions for distributing obscenity on direct appeal at the time of the Miller v. …
[2] The Miller v. …
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Join FLexlaw to unlock all legal intelligence“the federal Supreme Court in Hamling v. United States once again applied retrospectively the standards established in Miller v. California to federal statutes, while in Jenkins v. Georgia, that Court announced the rule that defendants whose convictions were on direct appeal at the time of the Miller decision should receive any benefit available to them thereunder, making no distinction between federal and state convictions for distributing obscenity”
Establishes that Miller standards apply retroactively to state obscenity convictions on direct appeal
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Join FLexlaw to unlock all legal intelligenceAppellants Fontana and Crichten were charged with selling obscene magazines and convicted by jury in Hillsborough County Magistrate's Court on six cou…
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BOYD, Justice.
An information was filed against Appel- • lants 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 were each fined $1,000.00 and sentenced to serve three months in the Hillsborough County jail.
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 Hillsborough County Circuit Court denied the motion to dismiss on three grounds but treated the jurisdictional ground as a motion to transfer under Rule 2.1 subd. a(5) (d), Florida Appellate Rules; the court then granted the motion and transferred the cause to this Court.1 We recognize that the federal Supreme Court in Hamling v. United States2 once again applied retrospectively the standards established in Miller v. California3 to federal statutes, while in Jenkins v. Georgia,4 that Court announced the rule that defendants whose convictions were on direct appeal at the time of the Miller decision should receive any benefit available to them thereunder, making no distinction between federal and state convictions for distributing obscenity.
The first Miller standard was initially enunciated in Roth v. United States5 and was reaffirmed in the “Memoirs” opinion;6 that standard is whether the average person, applying contemporary community standards, would find that, when taken as a whole, the magazines appeal to the prurient interest.
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).
The third and final standard established by Miller is whether the magazines, each taken as a whole, lack serious literary, artistic, political or scientific value.
In passing, we note that Miller has rejected as a constitutional standard the “Memoirs” test of “utterly without redeeming social value.” Accordingly, in view of the recent opinions of the United States Supreme Court in Hamling and in Jenkins, supra, the judgment of the trial court is reversed and remanded for further proceedings in which the Miller standards, as reviewed briefly above, may be applied.
It is so ordered.
ADKINS, C. J., and ROBERTS, Mc-CAIN, OVERTON and ENGLAND, JJ., concur. .
Article V, Section 3(b)(1), Florida Constitution. . 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). . 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). . 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). . 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1959). . A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).
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Citator
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Blannie Mae Spears v. State, 337 So. 2d 977 (Fla. 1976)…to section 847.05, FLORIDA STATUTES.” . Rhodes 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. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). . On receipt of the mandate issued in Bucolo v. Florida, supra, we “remanded t…
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Bucolo v. State, 316 So. 2d 551 (Fla. 1975)…red this cause in light of Jenkins 6 and Kois v. Wisconsin, 7 that Court reversed this Court’s holding and remanded the case for further proceedings. Accordingly, in view of this Mandate and in light of our recent holding in Fontana v. State, Fla., 316 So. 2d 543 opinion filed July 9, 1975, this cause is reversed and remanded to the trial court for further proceedings in which the standards established in Miller v. California8 can be applied. It is so ordered. ADKINS, C. J., and ROBERTS, OVERTON and ENGLAN…
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Charles Albert LAW v. State, 316 So. 2d 545 (Fla. 1975)…and unconstitutional as applied to appellant. The trial court denied the motion. . 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). . 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). . 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). . Fla., 316 So. 2d 543, opinion filed July 9, 1975.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hamling v. United States, 418 U.S. 87 (U.S. 1974)
- Roth v. United States, 354 U.S. 476 (U.S. 1957)
- Miller v. California, 413 U.S. 15 (U.S. 1973)
- A Book Named "john Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts, 383 U.S. 413 (U.S. 1966)
- Jenkins v. Georgia, 418 U.S. 153 (U.S. 1974)