State v. Kraham, 52697
| Decision Date | 31 May 1978 |
| Docket Number | No. 52697,52697 |
| Citation | 360 So.2d 393 |
| Parties | STATE of Florida, Appellant, v. Samuel KRAHAM, Appellee. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, Florida, for appellant.
Allan L. Hoffman, West Palm Beach, for appellee.
We must determine whether Section 847.011, Florida Statutes (1975) which makes unlawful the sale of obscene material is so inconsistent with the right to privately possess obscene material, as expressed in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) as to render the statute unconstitutional. We have jurisdiction under Article V, Section 3(b)(1), Florida Constitution. We hold the statute to be constitutional.
The appellee, Samuel Kraham, was charged by information with two counts of selling obscene motion pictures in violation of Section 847.011, Florida Statutes (1975). After entering a plea of not guilty, he moved to dismiss the information. After several hearings the trial court granted the appellee's motion citing Stanley v. Georgia, supra, and stating:
A regulation that criminally punishes one for providing that citizen with material he has a Constitutional right to possess is illogical and arbitrary (see dicta by Mr. Justice Stevens (United Jewish Organizations, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229) at page 996 of 97 S.Ct. (1977)). The Legislature could enact laws specific enough to accomplish the regulation it has a right to impose. The present law is overbroad for that purpose. Evenhanded enforcement of F.S. 847.011 is not possible and therefore is contrary to the Constitution; . . . "
At about the time the trial judge entered his order, this court filed its opinion in Johnson v. State, 351 So.2d 10 (Fla.1977), holding the statute to be constitutional. Since our consideration on the overbreadth issue of this statute is so recent, we see no reason to again set forth our reasons for upholding its constitutionality.
Accordingly, the order of the trial court is reversed and the case remanded.
It is so ordered.
The order of the trial court granting the Motion to Dismiss contains the following:
"Like it or not, mere private possession of obscene material is not a crime (Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969)). The State has legitimate and broad power to regulate the public dissemination of obscene materials (Roth v. U. S., 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)).
All powers of regulation are to some extent prohibitory in the sense that acts may be precluded from performance except when done in compliance with standards assuring the preservation of public health, safety, or welfare.
It then follows that a regulation may only be imposed upon a free people if it is not arbitrary and is founded upon, directly related to, and necessary for preserving the public health, safety, or welfare.
Regulations to assure that obscene materials do not fall into the hands of impressionable youngsters not mature enough to form proper judgments or persons mentally deficient to the extent they are incapable of controlling their actions, all can be justified against a charge of arbitrariness. Regulations which prevent forcing persons who desire not to view obscene materials from viewing them can also be so justified. The free, stable, mature citizen who does desire to view obscene material has that right under the Stanley v. Georgia decision cited above. A regulation that criminally punishes one for providing that citizen with material he has a Constitutional right to possess is illogical and arbitrary (see dicta by Mr. Justice Stevens at page 996 of 97 S.Ct. (1977)). The Legislature could enact laws specific enough to accomplish the regulation it has a right to impose. The present law is overbroad for that purpose. Evenhanded enforcement of F.S. 847.011 is not possible and therefore is contrary to the Constitution."
At present, the controlling case for the definition of obscenity is Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1972), this was a 5 to 4 decision that overruled or clarified Roth v. U. S., 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). From Roth in 1957 until Miller in 1972, the majority of the court could not agree on a standard to determine what constitutes obscene material subject to regulation under the state's police power.
Miller set forth a few plain examples of what the state's statute could define for regulation. The guidelines are (a) whether the average person,...
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Stall v. State
...with possession of obscene material with intent to sell. Moreover, we addressed the issue presented in the instant case in State v. Kraham, 360 So.2d 393 (Fla.1978), appeal dismissed, 440 U.S. 941, 99 S.Ct. 1415, 59 L.Ed.2d 630 The state charged Kraham with selling obscene motion pictures. ......
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State v. Long
...was not so inconsistent with the right to privately possess such material as to render that statute unconstitutional. State v. Kraham, 360 So.2d 393 (Fla.1978), appeal dismissed, 440 U.S. 941, 99 S.Ct. 1415, 59 L.Ed.2d 630...
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Sardiello v. State, 58516
...that there is directly applicable legal precedent. We have consistently upheld the constitutionality of section 847.011. State v. Kraham, 360 So.2d 393 (Fla.1978), appeal dismissed, 440 U.S. 941, 99 S.Ct. 1415, 59 L.Ed.2d 630 (1979); Johnson v. State, 351 So.2d 10 (Fla.1977); Rhodes v. Stat......
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Bowden v. State
...Florida Statutes (1977), is unconstitutional. In the first instance, we held the statute constitutional in the case of State v. Kraham, 360 So.2d 393, 394 (Fla.1978). In the second instance, the argument raises questions of fact, which are not properly before this Court on appellants' plea ......