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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DUANE E. OWEN and BRANDY
NOT FINAL UNTIL TIME EXPIRES TO
B. JENNINGS,
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellants,
v.
CASE NO. 1D01-3006
M I C H A E L M O O R E ,
SECRETARY OF FLORIDA
D E P A R T M E N T O F
CORRECTIONS, and STATE OF
FLORIDA,
Appellees.
_____________________________/
Opinion filed August 14, 2003.
An appeal from Circuit Court for Union County.
Stan R. Morris, Judge.
Duane E. Owen, pro se; and Brandy B. Jennings, pro se.
Charlie Crist, Attorney General; Robert P. Elson, Assistant Attorney General,
Tallahassee, for Appellees.
PER CURIAM.
We reverse the dismissal of appellants' complaint. Pursuant to our ruling in
Osterback v. Turner, 837 So. 2d 604 (Fla. 1st DCA 2003), the trial court erred in
dismissing the complaint prior to adjudicating the inmate to be indigent.
ERVIN and BENTON, JJ., CONCUR; WOLF, C.J., DISSENTS with opinion.

WOLF, C.J., Dissents.
While the trial court did not follow the law, any error was harmless. Pursuant
to § 59.041, Fla. Stat. (2002), no judgment shall be set aside or reversed for any error
as to any matter of pleading or procedure, unless it appears that such errors injuriously
affect the substantial rights of the complaining party or results in a miscarriage of
justice. See also Mathers v. Botsford, 86 Fla. 40, 43, 97 So. 282, 283 (Fla. 1923).
There is nothing to be gained by sending this ludicrous case back to the trial
court. Whether or not these death row inmates are indigent, they have no substantial
rights to, nor will they ever be entitled to, pornography in their prison cells. The
alleged First Amendment violation will never be actionable. We are wasting the trial
court's time and resources by requiring it to deal further with this case.
2

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