Sardiello v. State

BOYD, Acting Chief Justice. This cause is before the Court on appeal of a judgment of the County Court of Dade County. In rendering judgment the court passed upon the constitutionality of a state law. The notice of appeal was filed on January 11, 1980. This Court has jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972). The appellants were charged with possession of obscene materials with intent to distribute in violation of section 847.011, Florida Statutes (1977). Section 847.011(1) provides: (l)(a) A person who knowingly sells, lends, gives away, distributes, transmits, shows or transmutes, or offers to sell, lend, give away, distribute, transmit, show or transmute, or has in his possession, custody, or control with intent to sell, lend, give away, distribute, transmit, show, transmute, or advertise in any manner, any obscene, lewd, lascivious, filthy, indecent, sadistic, or masochistic book, magazine, periodical, pamphlet, newspaper, comic book, story paper, written or printed story or article, writing, paper, card, picture, drawing, photograph, motion-picture film, figure, image, phonograph record, or wire or tape or other recording, or any written, printed, or recorded matter of any such character which may or may not require mechanical or other means to be transmuted into auditory, visual, or sensory representations of such character, or any article or instrument of indecent use, or purporting to be for indecent use or purpose; or who knowingly designs, copies, draws, photographs, poses for, writes, prints, publishes, or in any manner whatsoever manufactures or prepares any such material, matter, article, or thing of any such character; or who knowingly writes, prints, publishes, or utters, or causes to be written, printed, published, or uttered, any advertisement or notice of any kind, giving information, directly or indirectly, stating, or purporting to state, where, how, of whom, or by what means any, or what purports to be any, such material, matter, article, or thing of any such character can be purchased, obtained, or had; or who in any manner knowingly hires, employs, uses, or permits any person to do or assist in doing, either knowingly or innocently, any act or thing mentioned above, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A person who, after having been convicted of a violation of this subsection, thereafter violates any of its provisions, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (b) The knowing possession by any person of six or more identical or similar materials, matters, articles, or things coming within the provisions of para [1017] graph (a) is presumptive evidence of the violation of said paragraph. Appellants moved to dismiss the information on the ground that the statute is unconstitutional. After denial of the motion to dismiss, pleas of nolo contendere were made, with specific reservation of the right to appeal the court’s ruling on the motion to dismiss. We find 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. State, 283 So.2d 351 (Fla.1978). The judgment is affirmed. It is so ordered. OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.