Carlisle v. State ex rel. Smith
| Decision Date | 03 October 1975 |
| Docket Number | No. 74--1517,74--1517 |
| Parties | . STATE of Florida ex rel. Michael Charles SMITH, Appellee. District Court of Appeal of Florida, Fourth District |
| Court | Florida District Court of Appeals |
Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellants.
Barry L. Halpern of Halpern, Shenberg & Longer, Miami, for appellee.
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:
Appellee thereupon filed in the circuit court a suggestion for writ of prohibition. The writ was issued prohibiting the county court from viewing the films on the grounds that, since the case had been nolle prossed, the county court no longer had jurisdiction, and any determination as to the obscenity of the films after the criminal case had been nolle prossed would deny appellee due process of law. We reverse.
Appellee, citing the concurring opinion of Judge Cross in Childers v. State, 277 So.2d 594 (4th D.C.A. Fla.1973), initially contends that once the nolle prosequi was filed, the information became a nullity and was incapable 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. Upon seizure of any materials alleged to have been possessed or otherwise dealt with in violation of § 847.011, the same must be delivered to and thereafter held by 'the clerk of the court having jurisdiction to try such violation.' When the materials are no longer needed as evidence, either the State or any claimant may move the court for disposition of same. 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. State ex rel. Gerstein v. Walvick Theatre Corp., 298 So.2d 406, 408--9 (Fla.1974). We therefore cannot conclude that its operation as the Legislature intended denies defendant due process of law.
The order granting writ of prohibition is reversed and this cause remanded with directions to dismiss the suggestion for the writ.
I must respectfully disagree with that portion of the majority opinion which would permit the county court to make a determination as to whether the seized films were obscene and hence subject to destruction. Therefore, to the extent that the circuit court's order would prohibit the county court from conducting any hearing leading to a determination of obscenity vel non it should be affirmed.
However, it is my opinion that the county court does possess jurisdiction to conduct a hearing pursuant to F.S. § 847.011(7), provided such proceeding does not embrace a determination of obscenity vel non. Hence the anomaly of a circuit court order which is partially correct and the majority opinion which I would suggest most respectfully is partially incorrect.
The writ of prohibition 'may be employed to restrain exercise by the inferior court of jurisdiction which it does not possess, Or to restrain action which is in excess of jurisdiction possessed'. State ex rel. Gore Newspaper Company v. Tyson, Fla.App.1975, 313 So.2d 777. A reading of sec. 847.011, as set forth in the majority opinion, reflects that the county court which was the court 'having jurisdiction to try such (obscenity law) violation' had custody of the films in question and clearly possessed the jurisdiction to make a determination regarding its return or destruction. Sec. 847.011(7), which specifically provides for a hearing at which such a determination is made, is silent with respect to the predicate for the hearing except to the extent that the seized materials are 'no longer required as evidence'. In other words, the authority to conduct the hearing is not dependent upon the outcome of a criminal proceeding, i.e., a conviction, an acquittal or a nol pros. Therefore, while a conviction, acquittal or a nol pros will, no doubt, have a bearing upon the outcome of such hearing it does not in my view affect the power, authority and jurisdiction of the county court to conduct such a proceeding.
Accordingly, the order of the circuit court seeking to prohibit the county court from conducting such a proceeding where the criminal charges against the defendant were nol prossed was overbroad.
However, although the county court is possessed of the jurisdiction to conduct a hearing for the determination of the return or destruction of the seized film it is my opinion that the county court would be acting 'in excess of jurisdiction possessed' if it proceeds to make a determination of obscenity vel non with respect to the films held by the court as evidence. The determination of obscenity...
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Sawyer v. Gable, 80-1990
...State, 41 So.2d 554 (Fla.1949). 10 See also State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla.3d DCA 1977); Carlisle v. State ex rel. Smith, 319 So.2d 624 (Fla. 4th DCA 1975). 11 Cf. United States v. Wright, supra; United States v. Palmer, supra; United States v. LaFatch, supra; United S......