Cohen v. State
| Decision Date | 01 June 1960 |
| Citation | 121 So.2d 155 |
| Parties | Sol I. COHEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Truett & Watkins and J. Ben Watkins, Tallahassee, for appellant.
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
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 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 orders of the trial court do not reflect that it 'directly' passed on the validity of § 847.01.
Therefore, it becomes apparent that as the record now stands we do not have jurisdiction of this appeal.
Nevertheless, it seems to us that a determination of the validity of the statute was an essential first step to any proceedings following the motion to quash the information and that although the trial court did not 'directly' pass on the validity of the statute, it could have and probably did determine the statute to be constitutional. It is of course possible that the trial court did not give any consideration to the validity of the statute and that it denied the motion without determining in its mind that the statute was valid. But we will not charge such to the court. Certainly had the trial court determined the statute invalid it could not have proceeded further to try the appellant. As we view it the order denying the motion to quash operates on each of the grounds asserted in the motion and therefore it has the effect of denying the appellant's contention that the statute is invalid. However, we realize that the appellant may not have argued the invalidity of the statute before the court or may have abandoned that ground of the motion.
In any event, however, the orders denying the motion to quash and the motion for new trial did not 'directly' pass upon the validity of the statute.
It might well be that we could here hold that a determination of the validity of the statute was inherent in the court's orders as we did in Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, Fla.1959, 111 So.2d 439.
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...to a construction 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 the constitution if the court undertakes to 'eliminate ......
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Cohen v. State
...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 ......
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State v. McInnes, C-393
...p. 206.9 Art. V, § 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. ...
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Tracey v. State
...Reeves Bowen, 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......