[26] I must respectfully dissent from the majority's findings on the question of whether *Page 699 the state was barred from instituting criminal charges against the defendant.
[27] In State v. Berberian, R.I., 427 A.2d 1298, 1301 (1981), we held that
"when an authoritative government agency or voice issues an official assurance or affirmatively misleads a defendant into believing that criminal sanctions do not apply to his behavior, no criminal sanctions will attach to the defendant because the defendant has been deprived of notice about what conduct the government intended to make criminal in violation of due process."
[28] The defendant sought and was granted a license to show motion pictures at his theater month after month by the West Warwick Town Council. It is true, as the majority points out, that the February 1981 license granted by the town council was not a license to show the two specific films in question. Nevertheless, it is abundantly clear that the town council was aware that defendant was showing X-rated movies at his theater. The defendant as well as the previous owner had been involved in a long-standing dispute with town officials over the showing of X-rated films. Moreover, defendant advertised his theater's showing of X-rated films on a weekly basis in the newspaper. Furthermore, the order temporarily restraining the West Warwick Chief of Police and the town council from harassing or interfering with the exhibition of motion-picture films at the theater was no longer in effect when defendant was granted a license to show films for the month of February 1981. Thus, as the majority correctly points out, it was of no consequence whether the license was issued "[p]ursuant to Court Order 75-262." Not bound by any court order and fully aware that defendant was showing X-rated movies at his theater, the town council could have asked to view the films that defendant planned to show or could have commenced proceedings under G.L. 1956 (1976 Reenactment) § 5-22-5. Instead, the town council chose to issue defendant a license to show what the town knew to be X-rated movies, thereby affirmatively misleading defendant to believe that his conduct in showing X-rated films met with the approval of the town council.
[29] Additionally, the majority contends that the present case is distinguishable from Berberian in that in the present case the town of West Warwick had not adopted a procedure for viewing films and making a determination whether to grant a license or to commence proceedings to adjudge films obscene. What the majority fails to explain is why the town council did not follow the procedure set forth in § 5-22-5, which provides that where
"a license for any particular performance, show or exhibition [is sought] and the town council, [or] the board of police commissioners * * * is of the opinion that the said license should not be granted on the ground that the said performance, show or exhibition is obscene, the said town council, [or] the board of police commissioners * * * shall within forty-eight (48) hours of the filing of such application, either grant the license sought or commence a suit * * * by the filing of a complaint wherein shall be contained prayers that the said performance, show or exhibition be adjudged obscene and that the * * * [applicant] * * be permanently enjoined from presenting or conducting it in the particular city or town."
[30] The town council never instituted proceedings pursuant to §5-22-5, as it should have if it believed that the defendant was showing obscene films. As a result, I feel that the issuance of the license by the West Warwick Town Council gave the defendant sufficient assurance for believing that the showing of the films in question was conduct for which he could not be criminally sanctioned.
[31] I would therefore sustain the defendant's appeal, vacate the judgment of conviction, and grant the motion to dismiss. *Page 1199