State v. Aiuppa

• Decision Date: 01 May 1974
• Docket Number: No. 44264,44264
• Citation: 298 So.2d 391
• Parties: STATE of Florida, Petitioner, v. Sal AIUPPA, Respondent.
• Court: Florida Supreme Court

Page 391

298 So.2d 391

STATE of Florida, Petitioner, v. Sal AIUPPA, Respondent.

No. 44264.

Supreme Court of Florida.

May 1, 1974.

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

Tobias Simon and Elizabeth J. duFresne, Miami, for respondent.

DEKLE, Justice.

In accordance with Rule 4.6, Florida Appellate Rules, 32 F.S.A., the Honorable Robert J. Shingler, County Judge of the County Court for Pinellas County, has certified to this Court for instruction the question of law set forth below. The pertinent portion of the certificate as submitted to us reads as follows:

'STATEMENT OF FACTS

'This case is before the County Court for trial on direct information filed by the State Attorney charging the defendant, SAL AUIPPA, with violation of Chapter 73--120 Laws of Florida 1973 in the following language,

'. . . that SAL AUIPPA of the County of Pinellas and State of Florida, on the 5 day of July in the year of our Lord, one thousand nine hundred seventy-three, in the County and State aforesaid, did distribute obscene material by exhibiting to other persons a motion picture film entitled 'Deep Throat,' knowing the obscene nature thereof, said film considered as a whole, applying contemporary community standards, having its predominant appeal to the prurient interest, being utterly without redeeming social value, and going substantially beyond the customary limits of candor in representing nudity and sexual conduct in that said film graphically depicts and shows nude male and female persons actually engaging in sexual conduct including sexual intercourse, sodomy, cunnilingus, and fellatio, contrary to Chapter 73--120, Florida Statutes, and against the peace and dignity of the State of Florida.'

'The County Court stayed the proceedings to certify the questions of law to the Supreme Court of Florida for instruction pursuant to Florida Appellate Rule 4.6 (32 F.S.A.) which are determinative of the cause and for which the County Court believes are without controlling precedent to facilitate the proper disposition of said cause. The County Court on its own motion certifies the following:

'QUESTIONS OF LAW TO BE ANSWERED

'Whether the provisions of Chapter 73--120 Laws of Florida 1973,

'AN ACT relating to distribution of obscene materials; providing for the offense of distributing obscene material; providing definition of obscene material; providing penalties; providing for the offense of wholesale promotion of obscene material; providing penalty; providing for offense of requiring purchasers to accept obscene materials as a condition to sale or delivery for resale of other materials; providing penalty; providing for prior adversary hearing where appropriate; abrogating county and municipal ordinances relating to obscene materials and in effect July 1, 1973; prohibiting county and municipal ordinances relating to obscene materials, providing a severability clause; providing an effective date.'

'A. is guided by insufficient and arbitrary standards which are vague, indefinite and uncertain so as to violate the First Amendment standard of the United States Constitution set forth in the decisions of the United States Supreme Court in the case of Miller v. California, 41 LW 4925, (413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419), and Paris Adult Theatre I v. Slaton, 41 LW 4935, (413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446), in specifically defining sexual conduct?

'B. still requires the State of Florida to prove that the material must be 'utterly without redeeming social value' or in light of the decisions of the Supreme Court of the United States in Miller v. California, 41 LW 4925, (413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419), and Paris Adult Theatre I v. Slaton, 41 LW 4935, (413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446), rejecting same as a constitutional standard only the United States Supreme Court's rephrasing requiring that the work, taken as a whole, must be proved to lack 'serious literary, artistic, political or scientific value,' or both standards?

'C. is unconstitutionally vague in violation of the due process clause and equal protection guaranteed by the Constitution of the United States and of the State of Florida because a trial judge cannot determine what specifically defined sexual conduct is embodied with the definition of obscene material as written in Chapter 73--120 in order to properly instruct a jury and conduct a trial under the requirements set forth by the United States Supreme Court in the cases of Miller v. California, 41 LW 4925, (413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419) and Paris Adult Theatre I v. Slaton, 41 LW 4935, (413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446).'

A question or proposition certified directly to this Court by a county court must be one which, if decided by the county court, would be reviewable on direct appeal from that court to this Court. Jaworski v. City of Opa-Locka, 149 So.2d 33 (Fla.1963). If this cause proceeded to final judgment the trial court would, of necessity, pass upon the constitutional validity of a state statute. An appeal would then lie directly to this Court. Fla.Const., Art. V, § 3(b)(1), F.S.A. We therefore have jurisdiction and may answer the questions certified by the trial judge. We consider here only the constitutionality of the statute Vel non, which is the manner in which it has been submitted, and not as applied to any particular factual situation. Neither is Fla.Stat. Ch. 73--120, § 1(3), involved here; it provides that material not otherwise obscene may be deemed obscene if the distribution of the material in question is a commercial exploitation of erotica solely for the sake of their prurient appeal. However, inasmuch as the instant case does not involve any 'pandering,' we need not discuss the constitutionality of § 1(3) of Ch. 73--120.

A. and C. 'VAGUENESS and DUE PROCESS'

Ch. 73--120 states that material is obscene 'if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters.' The wording of the statute is substantially the same as the Georgia statute in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973).

Upon return of Slaton for reconsideration, the Supreme Court of Georgia in Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456 (1973), upheld the constitutionality of Ga.Code Ann. § 26--2101, after which the Florida statute under consideration was fashioned. The Georgia court cited its 'authoritative constructions' in earlier decisions involving the statute to support the requirement for statutory definitions of obscenity. ¹ Those earlier interpretations were held to supply the required specificity in the present statutory phraseology under consideration. The prior authoritative constructions were also held to have avoided an unconstitutional retroactive judicial construction of the statute, thereby preventing a violation of the due process clause. Florida does not enjoy such earlier interpretations of this statute upon which to rely but we do find the statutory language sufficient.

Ch. 73--120 was patterned after the substantially identical provision found in 26 Ga.Code Ann. § 2101(b). Where this occurs it is proper to resort to judicial constructions placed on the statute by the courts of the state whose statute provided the 'model' in determining the proper construction of our own statute. Gay v. Inter-County Tel. & Tel. Co., 60 So.2d 22 (Fla.1952); Denmark v. Ridgell Furniture Co., 117 Fla. 244, 157 So. 489 (1934); Venice East, Inc. v. Manno, 186 So.2d 71 (Fla.App.2d 1966). If a Florida statute is patterned after a statute of a sister state, it is amendable to the same construction that its prototype has been given in the sister state. Flammer v. Patton, 245 So.2d 854 (Fla.1971); Atlantic Coast Line R. Co. v. Beazley, 54 Fla. 311, 45 So. 761 (1907).

Statutes adopted from another state may be deemed to have been adopted with the construction given to them by the courts of the state from which they were adopted. State ex rel. Porter v. Atkinson, 108 Fla. 325, 146 So. 581 (1933). A statute adopted from another state is governed by the construction placed upon it, at the time of its enactment, by the highest court of the state from which the statute was adopted. Crane Co. v. Richardson Constr. Co., 312 F.2d 269 (CA 5, 1963). Thus, in construing Ch. 73--120 to determine whether it meets the 'specificity' test set forth in Miller, we may properly resort to interpretations of 26 Ga.Code Ann. § 2101(b) by the Supreme Court of Georgia, which is the highest court of the state from which our statute was adopted, prior to the date on which Ch. 73--120 was enacted.

As was noted by the Supreme Court of Georgia in Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456 (1973), the provisions of 26 Ga.Code Ann. § 2101(b) have been authoritatively construed in such a manner as to meet the 'specificity' test set forth in Miller. The cases relied upon in Slaton to support such determination are Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971) (dealing with 'acts of sexual intercourse, natural, unnatural, bizzare, and violent'); Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971) ('actual sexual activity, both natural and unnatural,' including sexual intercourse, fellatio and cunnilingus); 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S.E.2d 144 (1971) (similar description of the material involved); and Slaton v. Paris Adult Theatre, I, 228 Ga. 343, 185 S.E.2d 768 (1971) (simulated sexual activity including portrayal of sexual intercourse and fellatio). All of these authoritative constructions of the Georgia statute, it will be noted, were handed down in 1971, well before the date upon...