TIMOTHY A. FRANKLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant cannot raise the constitutionality of a special act for the first time on appeal if it does not constitute fundamental error.
[1] A defendant cannot raise the constitutionality of a statute for the first time on appeal unless it constitutes fundamental error that can be considered sua sponte by the…
[2] A municipal charter authorizing warrants for violations of city ordinances is constitutional when those ordinances encompass state misdemeanors.
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted of a narcotics violation based on evidence seized via a search warrant issued by a municipal court. The defendant challenged t…
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WALDEN, Judge.
Defendant was found guilty of a narcotics violation and duly adjudged and sentenced in one of the circuit courts of this state. The contraband upon which the conviction hinged was produced per search warrant of a private dwelling issued by a municipal court. The gravamen of appellant’s suggestion is that the municipality could not issue such warrant for that the charter of the municipality authorizing warrants “to obtain evidence and facts of the violation of any laws or ordinances of the city” was unconstitutional. Without detailing, the municipality had the usual catch-all proviso, which provided that the commission of state misdemeanors constituted violation of a municipal ordinance.
Appellant urges that the charter authorization was too general as concerns the search of a private dwelling when compared to the provisions of F.S. 933.18, Laws of 1971, F.S.A. And now for our judicial consideration of the problem. We notice that the defendant did not raise the constitutionality of the special act in question in the trial court and we feel that he can not do so here, State v. McInnes, Fla.App.1961, 133 So. 2d 581, as it does not constitute such fundamental error under Rule 3.7(i), F.A.R., 32 F.S.A., that we may sua sponte consider the issue. Palm Beach County v. Green, Fla.1965, 179 So. 2d 356; Radford v. Town of Palm Beach Shores, Fla.App. 1972, 267 So. 2d 36. We feel there has been no deprivation of process, particularly since the offense in question exactly fits the definition in Section 933.18(5), F.S. 1971, F.S.A., providing that warrants for the search of private dwellings may not be issued unless “the law relating to narcotics and drug abuse is being violated therein.” Thus, when we consider the offense and read the charter authorization in conjunction with the above mentioned statute and consider the affidavit and warrant in question, we believe that same is justified, rendering the search thereunder and resulting conviction proper. State v. Williams, Fla. App.1969, 227 So. 2d 331.
Affirmed.
MAGER, J., and FERRIS, JOHN G., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bissonette v. State, 307 So. 2d 222 (Fla. 4th DCA 1975)…titutionality of F.S. 39.02(6) (c), 1971, was not raised and directly passed upon by the trial court and as such is precluded from consideration by this court. State v. McInnes, Fla.App.1961, 133 So. 2d 581; see also Franklin v. State, Fla.App.1973, 285 So. 2d 32; Mann v. State, Fla.App. 1968, 209 So. 2d 472; but see Papp v. State, Fla.App.1973, 281 So. 2d 600. Accordingly, the judgment and conviction are affirmed. MAGER and DOWNEY, JJ., and ALDERMAN, JAMES E., Associate Judge, concur.…
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Lynch v. State, 314 So. 2d 173 (Fla. 4th DCA 1975)…ised and directly passed upon by the trial court and as such is precluded from consideration by this court. State v. McInnes, 133 So. 2d 581 (1st D.C.A.Fla.1961); see also, Bissonette v. State, 307 So. 2d 222 (4th D.C.A.Fla.1975); Franklin v. State, 285 So. 2d 32 (4th D.C.A.Fla.1973); Mann v. State, 209 So. 2d 472 (1st D.C.A.Fla.1968); but see, Papp v. State, 281 So. 2d 600 (4th D.C.A.Fla.1973). Affirmed. OWEN, C. J., and MAGER and DOW-NEY, JJ., concur.…
Authorities Cited
- State v. McINNES, 133 So. 2d 581 (Fla. 1st DCA 1961)
- Palm Beach Cnty. v. Green, 179 So. 2d 356 (Fla. 1965)
- State v. Williams, 227 So. 2d 331 (Fla. 4th DCA 1969)
- Radford v. Town OF Palm Beach Shores, 267 So. 2d 36 (Fla. 4th DCA 1972)