City of Miami Beach v. Eason, No. 66--227

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore HENDRY; CARROLL
Citation194 So.2d 652
Decision Date24 January 1967
Docket NumberNo. 66--227
PartiesCITY OF MIAMI BEACH, a Florida municipal corporation, Petitioner, v. David EASON, Respondent.

Page 652

194 So.2d 652
CITY OF MIAMI BEACH, a Florida municipal corporation, Petitioner,
v.
David EASON, Respondent.
No. 66--227.
District Court of Appeal of Florida, Third District.
Jan. 24, 1967.
Rehearing Denied Feb. 22, 1967.

Page 653

Joseph A. Wanick, City Atty., for petitioner.

Shutts & Bowen, Herbert L. Nadeau and Joseph I. Davis, Miami, for respondent.

Before HENDRY, C.J., and PEARSON and CARROLL, JJ.

CARROLL, Judge.

The respondent David Eason was charged with violation of a provision of the zoning ordinance of the City of Miami Beach. 1 He pleaded nolo contendere in the municipal court. As authorized and required on such a plea when it is accepted, sentence was imposed. He was fined $50.

Eason superseded the judgment and appealed therefrom to the circuit court, which has final appellate jurisdiction of appeals from decisions of municipal courts. Art. V, § 6(3) Fla.Const., 26 F.S.A. The circuit court first affirmed, then on rehearing reversed. Thereupon the city appealed.

At the outset we note that this appeal is from a decision rendered by the circuit court in exercise of its appellate jurisdiction. Provision is not made for Appeal of such a decision to this court. However, it is provided in § 59.45 Fla.Stat., F.S.A. that where an appeal is improvidently taken when the remedy might have been more properly sought by certiorari, the notice of appeal and the record thereon may be regarded and acted on as a petition for certiorari duly presented. Accordingly, we take jurisdiction and treat the appeal as a certiorari.

The charge on which the respondent was prosecuted in the Miami Beach municipal court was: '* * * that he (David Eason) did service a rented vehicle with gasoline while said vehicle was parked on a parking area or premises controlled by the Deauville Hotel while awaiting use by the rental customer, * * *'

The defendant's plea of nolo contendere left open for review only the sufficiency of the charge, and operated as a waiver of all defenses other than that no offense was charged. Peel v. State, Fla.App.1963, 150 So.2d 281, 292. Within that limitation, the defendant, in appealing to the circuit court, properly could and did contend that the charge stated against him by the city constituted no offense, for the claimed reason that the provision of the ordinance on which it was predicated was unconstitutional.

The zoning ordinance (No. 289, Section 5(4) provides that in hotels consisting of 100 or more guest rooms certain designated service facilities are authorized, including automobile rental sub-agencies. The pertinent language of the ordinance as to automobile rental sub-agencies is as follows:

'Hotels consisting of one hundred (100) or more guest rooms may contain * * * the following service facilities, when designed and intended for use solely and exclusively as an incident to the principal hotel use, to wit: * * * automobile rental sub-agencies, subject to the same requirements as other accessory use facilities enumerated in the aforementioned sections, provided that no rental cars be stored on the controlled premises or parking areas of such hotels unless there is a bonafide contract

Page 654

on file at such hotel automobile rental sub-agency as proof that a particular car stored is under hire in that area by a guest of the establishment, and further provided that during such normal parking the rented vehicle may not be serviced with gasoline or oil or repaired in such parking area while awaiting use by the rental customer, * * *'

The basis on which the circuit court (on appeal) held the applicable provision of the ordinance invalid is shown by the...

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4 practice notes
  • State v. Ashby, No. 39304
    • United States
    • United States State Supreme Court of Florida
    • February 3, 1971
    ...v. State, 226 So.2d 399 (Fla.1969), and the decision of the District Court of Appeal, Third District, in City of Miami Beach v. Eason, 194 So.2d 652 (Fla.App.3rd, 1967). The State petitioned for certiorari to the District Court of Appeal. We have Two issues must be resolved. First, was the ......
  • State ex rel. Carter v. Wigginton, No. 37712
    • United States
    • United States State Supreme Court of Florida
    • March 19, 1969
    ...review efforts in another category. City of Miami Beach v. O'Hara (Fla.App.), 166 So.2d 598, and City of Miami Beach v. Eason (Fla.App.), 194 So.2d 652. I digress to express an obiter suggestion that it would be a salutary reform, avoiding much of the delay and confusion which is typified b......
  • City of Fort Lauderdale v. Couts, No. 69--814
    • United States
    • Court of Appeal of Florida (US)
    • September 30, 1970
    ...thereon may be regarded and acted on as a properly presented petition for certiorari. See City of Miami Beach v. Eason, Fla.App.1967, 194 So.2d 652. Accordingly, we have treated the appeal and the record thereon as a petition for certiorari, and in this context, conclude that the circuit co......
  • Thompson v. State, No. 48423
    • United States
    • United States State Supreme Court of Florida
    • November 30, 1976
    ...281 (Fla.2d DCA 1963), Appeal dismissed, 168 So.2d 147 (Fla.1964), Cert. denied, 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965). 3 194 So.2d 652 (Fla.3d DCA 4 Essentially, 150 So.2d at 283--92. Additionally, I would now approve, as being without technical deficiency, the use of the Engl......
4 cases
  • State v. Ashby, No. 39304
    • United States
    • United States State Supreme Court of Florida
    • February 3, 1971
    ...v. State, 226 So.2d 399 (Fla.1969), and the decision of the District Court of Appeal, Third District, in City of Miami Beach v. Eason, 194 So.2d 652 (Fla.App.3rd, 1967). The State petitioned for certiorari to the District Court of Appeal. We have Two issues must be resolved. First, was the ......
  • State ex rel. Carter v. Wigginton, No. 37712
    • United States
    • United States State Supreme Court of Florida
    • March 19, 1969
    ...review efforts in another category. City of Miami Beach v. O'Hara (Fla.App.), 166 So.2d 598, and City of Miami Beach v. Eason (Fla.App.), 194 So.2d 652. I digress to express an obiter suggestion that it would be a salutary reform, avoiding much of the delay and confusion which is typified b......
  • City of Fort Lauderdale v. Couts, No. 69--814
    • United States
    • Court of Appeal of Florida (US)
    • September 30, 1970
    ...thereon may be regarded and acted on as a properly presented petition for certiorari. See City of Miami Beach v. Eason, Fla.App.1967, 194 So.2d 652. Accordingly, we have treated the appeal and the record thereon as a petition for certiorari, and in this context, conclude that the circuit co......
  • Thompson v. State, No. 48423
    • United States
    • United States State Supreme Court of Florida
    • November 30, 1976
    ...281 (Fla.2d DCA 1963), Appeal dismissed, 168 So.2d 147 (Fla.1964), Cert. denied, 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965). 3 194 So.2d 652 (Fla.3d DCA 4 Essentially, 150 So.2d at 283--92. Additionally, I would now approve, as being without technical deficiency, the use of the Engl......

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