City of Fort Lauderdale v. Mattlin, 89-1295

• Decision Date: 29 August 1990
• Docket Number: No. 89-1295,89-1295
• Citation: 566 So.2d 1330
• Parties: 15 Fla. L. Weekly D2157 CITY OF FORT LAUDERDALE, Appellant, v. Marc A. MATTLIN, Appellee.
• Court: Florida District Court of Appeals

Page 1330

566 So.2d 1330

15 Fla. L. Weekly D2157

CITY OF FORT LAUDERDALE, Appellant, v. Marc A. MATTLIN, Appellee.

No. 89-1295.

District Court of Appeal of Florida Fourth District.

Aug. 29, 1990.

Rehearing, Clarification and Certification Denied Oct. 16, 1990.

Robert Scott Walker, Mun. Prosecutor and Karen E. Black-Barron, Asst. City Prosecutor, Fort Lauderdale, for appellant.

Ronald E. D'Anna, Boca Raton, for appellee.

James B. Lyon, Mun. Prosecutor, Coral Springs, for amicus curiae, City of Coral Springs.

STONE, Judge.

We affirm a circuit court order directing the county court to discharge the defendant because he was not brought to trial within the speedy trial period. Appellee was charged with violating a municipal ordinance which made it unlawful to commit an act, otherwise constituting a state misdemeanor, within the city. The offense, if charged as a misdemeanor, is punishable by sixty days incarceration but, if charged as an ordinance violation, is punishable by ninety days incarceration.

Florida Rule of Criminal Procedure 3.191 provides that "every person charged with a crime by indictment or information shall be brought to trial within 90 days if the crime charged be a misdemeanor, or within 175 days if the crime charged is a felony." Appellant asserts that the rule is inapplicable because an ordinance violation is not a crime, by definition, regardless of the extent of punishment for its violation. See, e.g., Kimmons v. State, 156 Fla. 448, 23 So.2d 523 (Fla.1945); Roe v. State, 96 Fla. 723, 119 So. 118 (Fla.1928).

Florida Statutes Section 775.08(3) provides:

The term "noncriminal violation" shall mean any offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by no other penalty than a fine, forfeiture, or other civil penalty. A noncriminal violation does not constitute a crime, and conviction for a noncriminal violation shall not give rise to any legal disability based on a criminal offense. The term "noncriminal violation" shall not mean any conviction for any violation of any municipal or county ordinance. Nothing contained in this code shall repeal or change the penalty for a violation of any municipal or county ordinance.

Additionally, Florida Statutes Section 775.082(5) says:

Any person who has been convicted of a noncriminal violation may not be sentenced to a term of imprisonment nor to any other punishment more severe than a fine, forfeiture, or other civil penalty, except as provided in chapter 316 or by ordinance of any city or county.

Pursuant to the revision of article V of the constitution of this state, all ordinance violations are to be prosecuted in the county court. Appellant asserts that prior to adoption of article V, the speedy trial rule did not apply to municipal court proceedings. See State ex rel. Savage v. Kaplan, 297 So.2d 868 (Fla. 4th DCA 1974). See also State v. Thaddies, 364 So.2d 819 (Fla. 4th DCA 1978). These cases were in accord with the view that ordinance violations tried in municipal courts, even though based on state criminal statutes and punishable by incarceration, were considered civil infractions.

Although Florida historically viewed the state and its municipalities as dual sovereignties, the United States Supreme Court has determined that they are not. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, reh'g. denied, 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 79 (1970). In that case, the court recognized that municipal prosecutions for offenses punishable by incarceration deserve constitutional protections afforded in criminal prosecutions. See also Hernandez v. State, 397 So.2d 715 (Fla. 1st DCA), rev. denied, 411 So.2d 382 (1981). We note that the Florida Supreme Court, upon abolition of municipal courts, established a speedy trial moratorium with respect to municipal ordinance violation prosecutions transferred to the county court. In re Abolition of Municipal Courts Transition Rule 22, 339 So.2d 1119 (Fla.1976). Additionally, even prior to the adoption of article V, a municipal defendant could transfer charges that were punishable by incarceration to state court and thus be entitled to the speedy trial rule's protection. See State v. Hendricks, 309 So.2d 232 (Fla. 4th DCA 1975); Barlow v. State, 345 So.2d 758 (Fla. 1st DCA 1977).

In our judgment, an ordinance violation punishable by incarceration is the equivalent of a misdemeanor for the purpose of applying speedy trial rules. A municipality may not deny an accused rights...