Ellison v. City of Fort Lauderdale, 5398

• Decision Date: 19 February 1965
• Docket Number: No. 5398,5398
• Citation: 172 So.2d 867
• Parties: Bertram C. ELLISON, Petitioner, v. CITY OF FORT LAUDERDALE, a municipal corporation, Respondent.
• Court: Florida District Court of Appeals

Page 867

172 So.2d 867

Bertram C. ELLISON, Petitioner, v.CITY OF FORT LAUDERDALE, a municipal corporation, Respondent.

No. 5398.

District Court of Appeal of Florida, Second District.

Feb. 19, 1965.

Rehearing Denied March 19, 1965.

Harry G. Carratt, Francis D. O'Connor of Morgan, Carratt & O'Connor, Fort Lauderdale, for petitioner.

C. Shelby Dale, James E. Edwards, William J. Lee, Nels Pearson, Fort Lauderdale, for respondent.

ALLEN, Judge.

Petitioner seeks review by certiorari of the decision of the Circuit Court of Broward County, Florida, affirming a judgment of conviction entered against him by the Municipal Court of Fort Lauderdale.

The conviction was for the violation of a city ordinance that prohibited the keeping of horses on property zoned residential-office (R-O) under the zoning ordinances of the respondent.

Respondent moved to dismiss the petition on jurisdictional grounds, and ruling was deferred until argument was heard on the petition for the writ.Argument having now been heard, we arrive at the conclusion that the motion should be granted and the petition for writ of certiorari dismissed.

The Constitution of Florida, Article V, Section 6(3), F.S.A., confers upon the circuit courts final appellate jurisdiction 'of all cases arising in municipal courts.'Therefore, judgments of a circuit court while sitting in the exercise of its appellate jurisdiction are subject to review only by petition for writ of certiorari.This review is the co-called common law certiorari power, and is now vested in the district courts of appeal and circuit courts by the amended Article V.

The extent of this review is well laid out by the Third District Court of Appeal in State v. Katz, Fla.App.1959, 108 So.2d 60, and by this court in Cast-Crete Corporation v. Prater, Fla.App.1961, 134 So .2d 813.In the Katz case, the court, in looking to precedent previously applicable to the Florida Supreme Court when the power to issue such writs was vested in that body, quoted the following language from American Ry. Express Co. v. Weatherfore, 1922, 84 Fla. 264, 93 So. 740, 741:

"Certiorari is a common-law writ which issues in the sound judicial discretion of the court to an inferior court, not to take the place of a writ of error or an appeal, but to cause the entire record of the inferior court to be brought up by certified copy for inspection, in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law, in cases where no direct appellate proceedings are provided by law. * * *"

Elsewhere, the court quoted from Benton v. State, 1917, 74 Fla. 30, 76 So. 341, 343:

"Under the Constitution of this state, the supervisory power of the Supreme Court on a certiorari to a circuit court as an appellate court is restricted to an examination into the external validity of the proceedings had in the circuit court, and cannot be exercised to review the judgment of that court as to its intrinsic...