Cohen v. State

CourtUnited States State Supreme Court of Florida
Writing for the CourtO'CONNELL; THOMAS
Citation121 So.2d 155
PartiesSol I. COHEN, Appellant, v. STATE of Florida, Appellee.
Decision Date01 June 1960

Page 155

121 So.2d 155
Sol I. COHEN, Appellant,
v.
STATE of Florida, Appellee.
Supreme Court of Florida.
June 1, 1960.

Page 156

Truett & Watkins and J. Ben Watkins, Tallahassee, for appellant.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.

O'CONNELL, Justice.

The appellant, Sol I. Cohen, was charged, tried, adjudged guilty, and sentenced for a violation of $847.01, F.S.1957, F.S.A.

Appellant appeals from the judgment and sentence.

In their briefs neither the appellant nor the State advise us of the basis upon which this Court can take jurisdiction of this cause. Nevertheless, we have on our own motion determined that we must consider the matter of jurisdiction now, although we have not yet heard argument in the cause.

Since this is a direct appeal to this Court from the trial court, if we have jurisdiction it must be on the basis that the trial court either directly passed upon the validity of § 847.01 or contrued a controlling provision of our state or federal constitution.

An examination of the record before us reveals that the trial court did neither.

Appellant moved to quash the information against him on three grounds. The first was that the information failed to charge a crime and the second was that the magazine alleged to have been sold and distributed by the appellant was not obscene, lascivious, lewd, filthy, indecent, immoral, degrading, or disgusting as defined by law.

The third ground of the motion to quash charged that the statute is unconstitutional for the reason that it violates the First and Fourteenth Amendments to the Federal

Page 157

Constitution, in that it unduly restricts freedom of speech and press and fails to provide a sufficiently definite standard of guilt. The trial court denied the motion by notation on the motion itself, which notation consists only of the word 'Denied,' the date, and signature of the judge.

The appellant in his motion for new trial after the jury returned a verdict of guilty again assaulted the constitutionality of the statute under which he was charged. The order denying the motion for new trial merely states that the court heard argument of counsel and being advised in the premises denied the motion.

It is quite obvious therefore that the trial court did not 'undertake to explain, define or otherwise eliminate existing doubts arising from the terms of the constitutional provisions' cited by appellant, as we have held that the trial court must do in its written order if such order is to constitute a 'construction' which will authorize a direct appeal of such case to this court on that basis. Armstrong v. City of Tampa, Fla.1958, 106 So.2d 407, 409.

It is equally obvious that the...

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4 practice notes
  • Schermerhorn v. Local 1625 of Retail Clerks Intern. Ass'n, AFL-CIO, AFL-CIO
    • United States
    • United States State Supreme Court of Florida
    • April 25, 1962
    ...of Section 12, Declaration of Rights. As stated in Armstrong v. City of Tampa, Fla., 106 So.2d 407, and in Cohen v. State, Fla., 121 So.2d 155, the trial court will be held to have construed a controlling provision of Page 272 the constitution if the court undertakes to 'eliminate existing ......
  • Cohen v. State
    • United States
    • United States State Supreme Court of Florida
    • November 30, 1960
    ...Reeves Bowen, Asst. Atty. Gen., for appellee. O'CONNELL, Justice. This is the same case considered previously in our opinion reported at 121 So.2d 155. Following that opinion and in accordance with the directions contained therein, the trial court entered an Amended Order Denying Motion to ......
  • State v. McInnes, No. C-393
    • United States
    • Court of Appeal of Florida (US)
    • September 12, 1961
    ...§ 4(2), Florida Constitution, F.S.A.; Robinson et al. v. State of Florida, Fla.1961, 132 So.2d 3. 10 Cohen v. State of Florida, Fla.1960, 121 So.2d 155. ...
  • Tracey v. State
    • United States
    • United States State Supreme Court of Florida
    • December 16, 1960
    ...Asst. Atty. Gen., for appellee. O'CONNELL, Justice. This cause is identical in many respects to the case of Cohen v. State, Fla.1960, 121 So.2d 155. As in the Cohen case, we are unable in this case to determine whether the trial court directly passed upon the validity of § 847.01, F.S.A., o......
4 cases
  • Schermerhorn v. Local 1625 of Retail Clerks Intern. Ass'n, AFL-CIO, AFL-CIO
    • United States
    • United States State Supreme Court of Florida
    • April 25, 1962
    ...of Section 12, Declaration of Rights. As stated in Armstrong v. City of Tampa, Fla., 106 So.2d 407, and in Cohen v. State, Fla., 121 So.2d 155, the trial court will be held to have construed a controlling provision of Page 272 the constitution if the court undertakes to 'eliminate existing ......
  • Cohen v. State
    • United States
    • United States State Supreme Court of Florida
    • November 30, 1960
    ...Reeves Bowen, Asst. Atty. Gen., for appellee. O'CONNELL, Justice. This is the same case considered previously in our opinion reported at 121 So.2d 155. Following that opinion and in accordance with the directions contained therein, the trial court entered an Amended Order Denying Motion to ......
  • State v. McInnes, No. C-393
    • United States
    • Court of Appeal of Florida (US)
    • September 12, 1961
    ...§ 4(2), Florida Constitution, F.S.A.; Robinson et al. v. State of Florida, Fla.1961, 132 So.2d 3. 10 Cohen v. State of Florida, Fla.1960, 121 So.2d 155. ...
  • Tracey v. State
    • United States
    • United States State Supreme Court of Florida
    • December 16, 1960
    ...Asst. Atty. Gen., for appellee. O'CONNELL, Justice. This cause is identical in many respects to the case of Cohen v. State, Fla.1960, 121 So.2d 155. As in the Cohen case, we are unable in this case to determine whether the trial court directly passed upon the validity of § 847.01, F.S.A., o......

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