Mitchum v. State

• Decision Date: 26 January 1971
• Docket Number: No. N--270,N--270
• Citation: 244 So.2d 159
• Court: Florida District Court of Appeals
• Parties: Robert MITCHUM, Dave Ballue, Clarence Howard Cantey, a business known as The Book Mart, a certain portion of land and building located at 19 Harrison Avenue, Panama City, Florida, and all other persons claiming any right, title or interest in the property affected by this action, Appellants, v. STATE of Florida, Appellee.

Page 159

244 So.2d 159

Robert MITCHUM, Dave Ballue, Clarence Howard Cantey, a business known as The Book Mart, a certain portion of land and building located at 19 Harrison Avenue, Panama City, Florida, and all other persons claiming any right, title or interest in the property affected by this action, Appellants, v. STATE of Florida, Appellee.

No. N--270.

District Court of Appeal of Florida, First District.

Jan. 26, 1971.

Rehearing Denied March 1, 1971.

Paul Shimek, Jr., Pensacola, for appellants.

Earl Faircloth, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.

SPECTOR, Judge.

This is an interlocutory appeal seeking reversal of an interlocutory order enjoining appellants from selling obscene literature and enjoining appellants from conducting the business of selling obscene literature in violation of Section 847.011, Florida Statutes, F.S.A., and further holding that said conduct by appellants constituted a public nuisance within the purview of Section 823.05, Florida Statutes, F.S.A.

The temporary injunctive order was entered after notice and prompt hearing at which appellants were represented by counsel. Evidence was taken at the hearing, including the admission in evidence of a group of magazines which the parties stipulated were representative of those being sold by appellants in the conduct of their business. Although appellants had ample opportunity to so demonstrate, no assertion or showing was made at the hearing that magazines or printed materials other than those of the kind received in evidence were being sold, had been sold or were present in the premises for the purpose of sale. Thus, there was no evidence before the trial judge that appellants were exercising or intended to exercise protected first amendment rights by the sale of nonobscene materials. The trial judge after notice and hearing specifically found the exhibits admitted in evidence were representative of all of the materials being sold and that the same were obscene because when taken as a whole they appealed to prurient interests, had no redeeming social value and, applying contemporary community standards, were patently offensive.

A review of the evidence before the trial court leaves no doubt that the materials involved were properly held to be obscene and thus not protected by the First Amendment of the United States Constitution. See this court's recent opinion in Collins v. State Beverage Department, 239 So.2d 613.

Although appellants contend that the trial judge's action was violative of their first amendment rights because there was no prior judicial adversary proceeding before the injunctive order issued, the fact of the matter is that in the case at bar a prior adversary judicial hearing was actually held before the injunctive order issued. Moreover, the United States Supreme Court recently held that a prior adversary hearing is not a prerequisite to the validity of an arrest. Milky Way Productions, Inc. v. Leary, S.D.N.Y. 305 F.Supp. 288, affirmed 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970). We hold the same rule of law applicable to limited seizures. We also hold that in the case at bar appellants' stipulation that the exhibits admitted in evidence were representative of all of the literature being held by them for sale precludes any contention by appellants that they had any nonobscene matter for sale and that the injunctive order reviewed herein had the effect of unlawfully depriving them of the right to sell protected first amendment materials. In essence, we hold that appellants' stipulation that the exhibits considered by the trial judge were representative of all of the materials they desired to sell constituted an admission by them that they had no materials of a character other than that which was considered by the trial...