WILLIAM RADFORD, PETITIONER,
v.
TOWN OF PALM BEACH SHORES, FLORIDA, RESPONDENT
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The circuit court departed from essential requirements of law by refusing to consider the constitutionality of a municipal ordinance, even though the issue was not raised in the trial court.
Petitioner was convicted of violating a municipal ordinance. Petitioner sought review of the conviction, claiming the ordinance was unconstitutional, …
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The petitioner seeks to review by common-law certiorari an order of the circuit court affirming the petitioner’s conviction in the Municipal Court of the Town of Palm Beach Shores on a charge of violating a municipal ordinance forbidding “Disturbance of the Peace.” Petitioner claims the ordinance to be unconstitutional. This defense was not raised in the trial court, and the circuit judge on appeal refused to consider the defense because of this failure to raise it at trial.
The constitutionality of the ordinance under which petitioner was convicted in the municipal court goes to the very foundation of the validity of the charge against petitioner and hence involves what the courts designate as “fundamental error” which may be considered on appeal even though not raised in the trial court. Sanford v. Rubin, Fla.1970, 237 So.2d 134; Palm Beach County v. Green, Fla.1965, 179 So. 2d 356; Town of Monticello v. Finlayson, 1945, 156 Fla. 568, 23 So.2d 843. The circuit court, sitting in its appellate capacity, departed from the essential requirements of law when it refused to consider the appellate issue properly before it, to-wit: the constitutionality vel non of the ordinance under which petitioner was convicted.
Certiorari is granted and the order of the circuit court under review is quashed. This cause is remanded to the circuit court in its appellate capacity with directions that it consider and pass upon the question of the constitutionality of the ordinance.
OWEN and MAGER, JJ., and WEHLE, VICTOR O., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Marion v. State, 287 So. 2d 419 (Fla. 4th DCA 1974)…ission constitutes fundamental error. Williams v. State, Fla.1971, 247 So. 2d 425; Miller v. State, Fla.App.1971, 246 So. 2d 169; Jefferson v. City of West Palm Beach, Fla.App.1970, 233 So. 2d 206; Radford v. Town of Palm Beach Shores, Fla.App.1972, 267 So. 2d 36. In our opinion the unobjected to evidence of defendant’s involvement in a collateral crime does not, under the circumstances of this case, fall within the “fundamental error” doctrine. But see Davis v. State, Fla.App.1973, 276 So. 2d 846; Green v.…
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Hoover v. State, 511 So. 2d 629 (Fla. 1st DCA 1987)…1965), app. dism., 188 So. 2d 310 (Fla.1966), in which the court reversed separate sentences imposed for two offenses involving the same transaction, even though the error was not assigned or argued before it. Radford v. Town of Palm Beach Shores, 267 So. 2d 36, 37 (Fla. 4th DCA 1972), in which the DCA held that the circuit court, sitting in its appellate capacity, had departed from the essential requirements of law when it refused to consider the issue of the constitutionality of the ordinance under which…
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Jaramillo v. City OF Homestead, 322 So. 2d 496 (Fla. 1975)…962); Dresner v. City of Tallahassee, 134 So. 2d 228 (Fla.1961); Brown v. City of Jacksonville, 236 So. 2d 1141 (Fla.App. 1st 1970), rev’d on other grounds, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). See Radford v. Town of Palm Beach Shores, 267 So. 2d 36 (Fla.App. 4th 1972). Accordingly, this appeal is transferred sua sponte to the Circuit Court of Dade County. It is so ordered. ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- Town OF Monticello v. Finlayson, 156 Fla. 568 (Fla. 1945)
- Palm Beach Cnty. v. Green, 179 So. 2d 356 (Fla. 1965)