*1 Monger No. Sup. Ct. Fla. Cer v. Florida. denied, tiorari of the appearing judgment that Su preme Court of upon Florida rests an ground.
Mr. Justice Douglas, with whom Mr. Bren- Justice nan and Mr. concur, dissenting. Justice Stewart
Petitioner was employed a newsstand which sold “girlie” He was magazines. charged with the sale of two allegedly magazines Body obscene Shop and The — Erotic Cinema —in violation of obscenity Florida’s stat- 1ute and, on November jury returned ver- dicts of guilty on both counts. On 12, 1971, the trial orally pronounced court its judgment of guilty imposed a sentence of $1,000 either a fine or six months’ imprisonment on each count, plus costs. That same day, petitioner filed his notice of appeal and a mo- tion for supersedeas. On January 18, the trial court entered its written order nunc pro tunc January 12. This order recited petitioner’s notice of appeal was filed after entry of judgment. Because he was challenging of a constitutionality state statute, petitioner’s appeal was transferred by the District Court of Appeal of Flor- ida, First District, to the Supreme Florida Court.
Respondent then made a motion to dismiss the appeal because “the notice of appeal. . . was filed prior entry of either judgment or sentence.” Respondent’s argu- ment was apparently founded upon the fact notice of appeal was filed after the oral entry of judg- ment but before the written nunc pro tunc order. In a 1 Fla. Stat. Ann. This §847.011. statute was held unconstitu tional a three-judge Meyer district court, Austin, Supp. F. 457, and an appeal from that judgment is presently pending before Court, this 70-35, No. Austin Meyer.
4—3 dismissed the decision, the Florida Court appeal. saying: Justice Ervin dissented,
“I it too technical altogther give think to refuse to credence to notices of filed ante appeals judgments to or being placed sentences reduced to and in writing a minute or judgment after they book have been pronounced open in court and reflected in the min- utes. A person delayed convicted should not be in appeal an or taking commencing service of sentence. A appeal notice necessarily of is not invalid because it antedates a written judgment. picks It up when the judgment is entered unless the can show prejudice by some early filing of the notice, which it in can’t this case.”
Petitioner now contends that it is a denial of due process to dismiss a criminal only defendant’s appeal for failing procedural ameet technicality where the failure does not prejudice the State.2 Alternatively, petitioner argues that the basis of by the dismissal the Florida Su- preme Court was not an adequate independent state ground which would bar this Court’s of review his First Amendment claims. Respondent answers that the State’s rules of appellate procedure necessary are “to avoid cha- otic and haphazard appellate proceedings” and thus com- port with requirements of procedural due process. any In argues event, respondent, the judgment below upon rests an state ground and thus is not within our jurisdiction. certiorari 28 U. S. §C. 1257 (3).
The Federal Constitution contains requirement no a provide State appellate courts or even that there be a right to appellate review. Illinois, v. 351 U. S. Griffin 2Petitioner argues that the appeal notice was filed prevent order to the trial court from increasing the sentence it imposed had orally.
12, 18;
Durston,
McKane v.
153 U.
S.
687-688. This
is not
to say, however,
appellate
once
review has
provided
been
may
State
deny
arbitrarily
or capri-
ciously without
violating
Equal Protection and Due
Process Clauses of the Fourteenth
Douglas
Amendment.
California,
v.
In my view, the of basis the dismissal Court of Florida is not an adequate and independent ground state sufficient to bar this Court’s review of peti tioner’s First Amendment claims. “Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice. ... [I]t necessary to see that practice local shall not be allowed to put unreasonable obstacles in way.” Davis v. Wech sler, 263 Thus, U. S. the rule that this Court will not review decisions founded upon state grounds is subject to exception so that federal claims may properly be vindicated. In Rogers Alabama, supra, for example, the state
court had stricken from the record a motion on the ground that it was “prolix,” but we nonetheless reached the federal question raised in that motion. We have similarly reached federal questions which had been avoided by state courts on ground the improper remedy had been used, NAACP Alabama, 357 U. S.
961
too indefinite
advanced had been
argument
that the
449;
by the
for consideration
improperly presented
or was
Columbia,
City
146;
Barr v.
U. S.
court,
state
of
Alabama,
Staub v.
288, 293-302;
NAACP v.
377 U. S.
Griffin,
Lovell
City
Baxley,
318-320;
355 U. S.
appellate
court
444, 449-450;
303 U. S.
state
jurisdiction
appellant
lacked
because the
had failed to
give
requisite opportunity
counsel the
to ex
opposing
Little Hunt
transcript,
amine and correct the
Sullivan v.
Park,
ing
229;
that a criminal defendant had
timely
not
objection
made
to the admission of evidence,
Henry Mississippi,
or that the
443;
required
U. S.
appeal
certification of the state
had
obtained,
not been
Tallahassee,
Parrot v.
“It is, course, familiar principle that this Court will decline to review judgments state court which independent rest on and even grounds, where those judgments also decide federal questions. principle applies only The not in cases involving state substantive but grounds, *4 also in cases involving procedural state grounds. But important to distinguish between state grounds substantive procedural state grounds. Where the ground involved is substantive, the deter- mination of the federal question cannot affect the disposition if the state court decision on the state question law is allowed to stand. Under the view taken in Murdock Wall. [20 590] statutes conferring appellate jurisdiction on this Court, we have power no to revise judgments on questions of
state law. Thus, the adequate nonfederal ground doctrine is necessary to avoid advisory opinions.
“These justifications have no application where the state ground is purely procedural. A procedural default which is held to bar challenge to a convic- tion in state courts, even on federal constitutional grounds, prevents implementation of the federal right. Accordingly, we have consistently held that the question of when and how defaults in compli- ance with state procedural rules can preclude our consideration of a federal question is itself a federal question.” (Citations omitted.) We then concluded “that a litigant’s procedural de- faults in state proceedings do prevent not vindication of his federal rights unless the State’s insistence on com- pliance with its procedural rule serves a legitimate state interest. In every case we must inquire whether enforcement of procedural forfeiture serves such a state interest. If it does not, the rule ought not be permitted to bar vindication of important federal rights.” Id., at 447-448. I assume that Florida has a legitimate interest foreclosing interlocutory appeals in order to piece- avoid
meal litigation of criminal cases. That assumption, however, does not dispose of the present case because Henry requires that “every case” be considered on its own facts. I Here, can fathom no state interest which would be served rejecting a notice of appeal filed after an oral pronouncement of judgment but before a written order. This is not a case where the orderly progress of the trial was disrupted by a dilatory inter- locutory appeal or where an appeal was sought before some vital aspect of the trial was completed. Nor is this a case where the record on appeal was missing some formal document or pleading. Indeed, tellingly absent from the order of Court of Florida *5 and the respondent any brief of the is the assertion state interest would which have been served had trial court’s order been written instead or petitioner oral had the waited until January file his formal appeal. notice of Under such circum- stances, Henry v. Mississippi teaches that we are free to consider petitioner’s federal claims.
I would grant petition for a writ of certiorari and reverse and Redrup York, remand on v. New 767. Liepman
No. 71-554. App. Ct. Cal., California. Doug- App. 2d Dist. Certiorari denied. Mr. Justice las is of opinion that certiorari should granted. be
No. 71-629. Valdez et al. v. Black et al. C. A. Douglas 10th Cir. denied. Certiorari Justice Mr. opinion of the that certiorari should granted. be No. 71-772. Menna C. 9thA. v. United States. Douglas Cir. Certiorari denied. Mr. Justice is of the opinion that certiorari should granted. be
No. A. 4th Roman United C. States. Douglas Cir. Certiorari denied. Mr. Justice is of the opinion that certiorari should be granted.
No. 71-870. Feinlowitz
App.
v. New York.
Ct.
Douglas
N. Y.
denied.
Certiorari
Mr. Justice
is of
opinion
that certiorari should be granted.
No. 71-668. Rivera United
States;
Marquez
No. 71-832.
A.
C.
2d
United
States.
Cir. Certiorari denied. Mr.
took no
Justice White
part
in the consideration or decision of these petitions.
Reported below: