City of St. Petersburg v. Calbeck, 1387

Decision Date28 August 1959
Docket NumberNo. 1387,1387
Citation114 So.2d 316
PartiesCITY OF ST. PETERSBURG, Petitioner, v. Marion CALBECK and Mary E. Calbeck, Respondents.
CourtFlorida District Court of Appeals

Carl R. Linn, Lewis T. Wray, Harry I. Young, Frank D. McDevitt, St. Petersburg, for petitioner.

McClure & Turville, St. Petersburg, for respondents.

ALLEN, Chief Judge.

This case comes before this court as a petition for writ of certiorari to review the judgment of the Circuit Court of Pinellas County reversing the judgment of the Municipal Court of St. Petersburg, which held the respondents guilty of disorderly conduct.

The respondents were convicted in the Municipal Court of St. Petersburg on the charge that they:

'Did unlawfully commit disorderly conduct, in that he (she) did engage in a fight, quarrell or other disturbance in the City.'

Bills of particulars were given to respondents and after hearing, the judgment of guilty was entered and fines of $50 each were levied and suspended.

An appeal was taken to the circuit court and on June 4, 1959, the circuit judge entered an order reversing the judgment on the grounds that the ordinance under which the respondents were tried and convicted as unconstitutional in that it violated Section 11 of the Declaration of Rights of the Constitution of Florida, F.S.A.

The assignments of error in the lower court did not question the constitutionality of the ordinance in question. The circuit judge, however, based his decision solely on the constitutional question so the sole question before this court is whether or not the ordinance in question is unconstitutional and therefore invalid as in violation of section 11 of the Bill of Rights of the Florida Constitution.

Section 34, Article V, of the Florida Constitution 1955 provided 'The Legislature may establish in incorporated towns and cities courts for the punishment of offenses against municipal ordinances.'

Section 11, Declaration of Rights, provides:

'In all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury, in the county where the crime was committed, and shall be heard by himself, or counsel, or both, to demand the nature and cause of the accusation against him, to meet the witnesses against him face to face, and have compulsory process for the attendance of witnesses in his favor, and shall be furnished with a copy of the indictment against him.'

In comparing the language of these provisions, the Supreme Court stated in Wright v. Worth, 83 Fla. 204, 91 So. 87, 88:

'The language of section 11 of the Declaration of Rights is so different from that of section 34 of article 5, that it is manifest the words 'criminal prosecutions * * * in the county where the crime was committed' in section 11, Declaration of Rights have no reference to 'the punishment of offenses against municipal ordinances' under section 34 of article 5.' See also State ex rel. Sellars v. Parker, 87 Fla. 181, 100 So. 260.

The St. Petersburg Charter (Chapter 15505, Special Acts of 1931) provides in part at section 11(e):

'The Municipal Judge or any Associate Municipal Judge shall have power to try all cases involving violations of the City Charter and ordinances, and for such violations to impose such penalties or fines as may be prescribed by ordinance, and shall have power to try cases upon information filed by the City Attorney or associate City Attorney, or upon affidavit filed by the complaining witness . . .'

The respondent contends that the ordinance is too vague in its definition of what conduct would constitute 'disorderly conduct.'

In State v. Reynolds, 1954, 243 Minn. 196, 66 N.W.2d 886, 889, the Supreme Court of Minnesota was confronted with whether a criminal statute which provides that every person who engages in brawling or fighting shall be guilty of disorderly conduct is so vague or indefinite as to violate federal and state guarantees of due process. In upholding the constitutionality of the statute the Court stated:

'The term 'disorderly conduct' is a more comprehensive term than breach of the peace. It is broader and more inclusive than breach of the peace or nuisance. The word 'disorderly' is a word that is almost self-explanatory as it is ordinarily used. When used in a legal sense it has a well-established meaning relating to the public peace and good order. When the term is used in relation to public offenses it means that a situation over which the individual has control is not being regulated by the restraint of morality; that compliance with the restraints of good order and law is lacking. 'Disorderly conduct' generally means some act which tends to breach the peace or to disturb those people who may hear or see it. For a person to be guilty of disorderly conduct the public or some member thereof must be disturbed. It is generally considered that disorderly conduct embraces certain minor offenses defined by statute or ordinance to consist in disturbances of the peace and quiet of the public, the community, families, or a class of persons, or in conduct which tends to provoke breach of the peace or to corrupt public morals.'

The order of the lower court holding petitioner-city's ordinance unconstitutional does not state the grounds or basis for such declaration. Apparently, the reason was that the conduct was not adequately defined so as to comply with the portion of section 11, Declaration of Rights that states:

'* * * to demand the nature and cause of the accusation against him, * * *'

It is obviously impossible in an ordinance of this type to specify and itemize all of the acts which would constitute disorderly conduct. The question as to whether a particular act is disorderly conduct depends on the facts in the particular case, and in the determination of such question not only the nature of the particular act should be considered but also the time and place of its occurrence as well as all the surrounding circumstances. 27 C.J.S. Disorderly Conduct § 1(2).

In 4 Fla.Jur. 597, Breach of the Peace and Related Offenses, § 2, it is provided:

'In general terms, a breach of the peace is a violation of public order, a disturbance of the public tranquility, by...

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  • Ryan v. Ryan
    • United States
    • Florida Supreme Court
    • March 30, 1973
    ...of whether a marriage has reached terminal stage in point of fact. The holdings in such cases as City of St. Petersburg v. Calbeck, 114 So.2d 316, at 319--320 (Fla.App.2d 1959); McArthur v. State, 191 So.2d 429 (Fla.1966); Smith v. State, 237 So.2d 139 (Fla.1970); and Smith v. State, 239 So......
  • D.P. v. State
    • United States
    • Florida District Court of Appeals
    • December 10, 1997
    ...of 1969 Piper Navajo, 592 So.2d at 236; L. Maxcy, Inc., 139 So. at 129, 103 Fla. at 570-71; see also City of St. Petersburg v. Calbeck, 114 So.2d 316, 319-20 (Fla. 2d DCA 1959). I do not believe that it can be realistically maintained, as the state attempts to do on this appeal, that sectio......
  • Severson v. Duff
    • United States
    • U.S. District Court — Middle District of Florida
    • December 29, 1970
    ...in which convictions under disorderly conduct and breach of the peace ordinances have been upheld. In City of St. Petersburg v. Calbeck, 114 So.2d 316 (Fla.2d D.C.A.1959), with further opinion at 121 So.2d 814 (Fla.2d D.C.A. 1960), the court upheld a disorderly conduct conviction for "abusi......
  • Wiegand v. Seaver
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • November 14, 1974
    ...287 So.2d 669 (Fla.1973); Bradshaw v. State, 286 So.2d 4 (Fla.1973); In re Fuller, 255 So.2d 1 (Fla.1971); City of St. Petersburg v. Calbeck, 114 So.2d 316 (Fla.2d D.C.A.1960).4 Fla.Jur. 597, 'Breach of the Peace and Related Offenses' 2 defines 'disorderly conduct' as 'embracing all such ac......
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