419 U.S. 1081 | SCOTUS | 1974
Dissenting Opinion
dissenting.
Thé Court dismisses this appeal for want of a properly presented federal question. That disposition is utterly indefensible on the record of this case.
“Any person who shall publicly use or utter any indecent or obscene language shall be guilty of a misdemeanor of the second degree_”
After the arrest, appellant was searched and marihuana was found in his possession. Appellant was then charged with using indecent or obscene language, resisting arrest, and possession of marihuana. Prior to trial, he moved to dismiss the information on the ground that on its face Fla. Stat. § 847.05 violates the First and Fourteenth Amendments and therefore the arrest pursuant to § 847.05 was unlawful and the ensuing search and seizure of the marihuana invalid. The motion was denied. At trial by jury, the marihuana was admitted in evidence and appellant was convicted solely on the charge of possession of marihuana. The conviction was appealed to the Florida Supreme Court pursuant to Art. 5, § 3 (b) (1), of the Florida Constitution, which directs the Florida Supreme Court to “hear appeals . . . from orders of trial courts . . . passing on the validity of a state statute ....” The Florida Supreme Court upheld the constitutionality of § 847.05, finding that the statutory language itself was “sufficient to convey to a person of common understanding its prohibition.” 293 So. 2d 33, 34 (1974). In view of that holding, the Florida Supreme Court found it unnecessary to decide whethér the marihuana conviction could stand if § 847.05 were unconstitutional and the initial arrest therefore unlawful.
Section 847.05 punishes only spoken words and, as construed by the Florida Supreme Court, is facially unconstitutional because it is not limited in application “to punish only unprotected speech” but is “susceptible of application to protected expression.” Gooding v. Wilson,
Gooding obviously compels reversal of the judgment of the Florida Supreme Court. The Court, however, dismisses this appeal for want of a properly presented federal question. But a dismissal on that ground would be appropriate only if the federal claim had not been raised in a proper and timely manner in the state courts. See, e. g., Bailey v. Anderson, 326 U. S. 203, 206-207 (1945) ; Street v. New York, 394 U. S. 576, 581-585 (1969). That cannot possibly be said of this case. The unconstitutionality of § 847.05 was the basic claim asserted by appellant and he urged it at every level in the state proceedings. And even were there doubt of this, and there can be none on this record, our jurisdiction still obtains since the Florida Supreme Court’s sole ground of decision was based upon resolution of the federal question. “There can be no question as to the proper presentation of a federal claim when the highest state court passes on it.” Raley v. Ohio, 360 U. S. 423, 436 (1959).
Certainly it cannot be said that there is lack of a properly presented federal question because appellant was con
Lead Opinion
Appeal from Sup. Ct. Fla. dismissed for want of properly presented federal question.