Rhodes v. State

• Citation: 283 So.2d 351
• Decision Date: 19 September 1973
• Docket Number: No. 41416,41416
• Parties: James E. RHODES, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 351

283 So.2d 351

James E. RHODES, Appellant, v. The STATE of Florida, Appellee.

No. 41416.

Supreme Court of Florida.

Sept. 19, 1973.

Paul Shimek, Jr., Pensacola, for appellant.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.

DEKLE, Justice.

We deal here with the 'old' Florida obscenity statute, § 847.011, which continues as law. ¹ Two movie films publicly exhibited by appellant at his Navy Point Adult Theater in Pensacola, titled 'He and She' and 'Sex Family Robinson on the Farm' were found by a jury to be obscene in violation Inasmuch as § 847.011(8)(b) injunctive proceedings were not invoked in this cause, the injunctive portion of the statute is of course not involved here. ⁵

of Florida's 1967 obscenity statute, § 847.011, which prohibits the sale, distribution, showing or possession of 'any obscene, lewd, lascivious, filthy, indecent, sadistic or masochistic book, magazine . . . photograph, motion picture film . . ..' There is no further amplification of these words in the statute ² except (11) ³ setting forth the Roth test. ⁴

Appellant's offense occurred on May 5, 1971, under the earlier statute in question, § 847.011 to which our holding must of course be restricted, despite the recent June 21, 25, 1973, 'cluster' of eight U.S. Supreme Court opinions on this perennial and 'seemingly intractable' problem of obscenity. ⁶

Appellant launches the following missiles of constitutional attack:

(1) unlawful search and seizure precluding admission of the films into evidence;

(2) non-obscenity of the films in question as a matter of law;

(3) unconstitutionality of Fla.Stat. § 847.011 because:

a) the statute does not provide for an adversary judicial hearing on obscenity prior to issuance of the warrant of seizure;

b) national and not contemporary community standards apply;

c) neither the statute, court rule nor practice and procedure in the courts provides for a prompt and final determination of the alleged obscenity.

SEIZURE WAS PROPER

Factually, appellant was tried and convicted by a jury based upon an indictment for violation of Fla.Stat. § 847.011, F.S.A. The grand jurors viewed either all or part of the two films involved. Some jurors viewed all of one film but not all of the other. Based upon affidavits submitted by the grand jurors and founded upon their collective viewing of the films as to content, the circuit judge issued a warrant for seizure of the films in question without a prior adversary judicial hearing. Immediately thereafter, the film was seized and the next day the indictment was returned by the grand jury against appellant. Motion Upon appellant's first challenge--seizure--he cites Roaden v. Kentucky, (1973), 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757, which reversed denial of the motion to suppress obscene films on the ground of illegal seizure. Our case is no Roaden. In Roaden the seizure was clearly erroneous in that it was made without a warrant, simply upon a viewing of the film by a county sheriff at a local drive-in theater and without any prior judicial determination of obscenity. Sub judice 1) a warrant was issued; 2) following a consideration by the judge of sufficient factual affidavits of the grand jurors who went and viewed the films. Thus there was a prior judicial determination by the circuit judge, and at all times thereafter there was an available judicial review of the ruling (though appellant sought none). ⁸ The seizure was legal and the motion to suppress was correctly denied. ⁹

to suppress was denied. During the trial the films were actually shown to the jury, then testimony was taken. The trial judge in acting upon appellant's motions expressly declared Fla.Stat. § 847.011, F.S.A., constitutional and this direct appeal followed. ⁷

EX POST FACTO APPLIES

The new U.S. Supreme Court cases are at once both amplifying and more restrictive: they are expansive in 1) expressing the principle of 'authoritative construction' ¹⁰ to amplify the statutory language in order to meet whatever test is applicable on the date of the offense in question, and 2) in laying down a prospective new test which is less restrictive than Roth-Memoirs; but these new holdings also more severely limit the state in its permissible statutory regulation of obscenity to so-called 'hardcore' materials of sexual acts expressly defined either in the statute or by authoritative construction thereof.

On the matter of standards of obscenity, the U.S. Supreme Court has now afforded a sensible test and guidelines in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), decided on June 21, 1973. The new test will no doubt prove more effective in future infractions of § 847.011 and of the new Fla.Stat. Ch. 73--120. We cannot, in our view, however, by reason of Ex post facto principles apply new standards in the now-judicially-approved 'new test' of obscenity ¹¹ to earlier offenses in determining the sufficiency of the statutory language to warn the average person of common intelligence as to what constitutes the prohibited offense. This is particularly true of '(c)' of the test in Miller as to 'literary, etc. value'. It may or may not be true of (a) and (b) in view of our statutory language and its construction as it may have been published as notice Sub judice the test set forth in these latest U.S. judicial holdings with respect to 'c' ('literary value') as to what now constitutes obscenity was not available on May 5, 1971, as amplification of the notice to appellant of the proscribed conduct; such a modification of the old test in the new holdings cannot now be echoed to the date of the earlier offense. ¹² The 'old test' (Memoirs v. Mass., 383 U.S. 413, 419, 86 S.Ct. 975, 978, 16 L.Ed.2d 1 (1966)) that the allegedly obscene matter be 'utterly without redeeming social value', must apply in such instance, for such was the test upon which defendant was on notice on the date (May 5, 1971) of the alleged violation. Said former test, then applicable, was correctly applied, however, in the trial below. Thus there was no error.

to an offender on the date of the offense in question.

We hold that the 'test' of what constitutes obscenity for purposes of notice of the proscribed conduct, and the test to be utilized at trial, is that which prevailed under the applicable statute as amplified by authoritative construction published at the time of the offense. ¹³

NEW TEST PROSPECTIVE ONLY

As to the constitutional sufficiency of § 847.011 Per se regarding no specific elaboration on the words obscene, lewd and lascivious, we must take the constitutional view that although there is a new test of obscenity in the aforementioned recent federal opinions, it does not avail us insofar as the sufficiency of the statutory language is concerned for purposes of the earlier offense before us for review. We are, of course, also aware that the U.S. Supreme Court saw fit to visit its new test retroactively as a matter of judicial construction upon its own federal statute, 18 U.S.C. § 1462, as to interstate transportation of obscene material and 19 U.S.C. § 1305(a) prohibiting importation thereof, which statutes are in fact in simpler terms than our own Florida statute. These federal statutes simply prohibit that 'which is obscene or immoral.' ¹⁴ Nevertheless, we do not deem the new U.S. Supreme Court test to be applicable to the earlier offense here on May 5, 1971, as to the change of standards under 'c' ('literary value'), because of constitutional Ex post facto principles which apply. ¹⁵

The later englightenment afforded by the new test cannot be visited upon the earlier offense to the extent outlined above, to shore up the rule that the statute must be sufficient to place the average person of common intelligence on notice of the proscribed conduct at the time of the offensive action. ¹⁶

PRIOR FLORIDA 'JUDICIAL CONSTRUCTION'

The unavailability of the new test, however, ever, in the prosecution of an earlier offense, does not preclude a conviction, nor the upholding of the validity of our Florida statute. For Miller has said,

'As a result, we now confine the permissible scope of such regulation (by the state) to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or Authoritatively construed.' (emphasis added)

By clear and continuing judicial declarations we have for many years past 'authoritatively construed' the statutory language of 'lewd and lascivious.' We have said in plain, understandable language that these statutory words proscribe 'an unlawful indulgence in lust; eager for sexual indulgence; open and public indecency' offensive to others. Chesebrough v. State, 255 So.2d 675 (Fla.1971), cert. den. 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676, catalogues the earlier cases, although it was not decided until December 8, 1971, subsequent to the offense here.

SUFFICIENT NOTICE TO OFFENDER

We hold the language of Fla.Stat. § 847.011 F.S.A., as heretofore authoritatively construed to be sufficient to meet the requirements of notice to the person of ordinary understanding, of the conduct proscribed as obscene, lewd and lascivious such as that here involved. Such offender hs accordingly had prior notice of our constant, clear judicial determinations with respect to 'lewd and lascivious' in the statute.

Former 'authoritative constructions' of the statute, announced in prior court decisions, which were of public notice at the time of the offense here, apply and were chargeable to appellant at the time of his offense. ¹⁷ The record supports the convictions under these prior applicable judicial interpretations.

The courts have made as clear as reasonably necessary, the test of obscenity, if it is applied with common sense in accordance with facts. There will always be those who contend otherwise,...