De Jong v. Pallotto, 38911
Citation | 239 So.2d 252 |
Decision Date | 16 September 1970 |
Docket Number | No. 38911,38911 |
Parties | Donald DE JONG, Appellant, v. George PALLOTTO, Judge of the Municipal Court in and for the City of Hollywood, and the City of Hollywood, a Municipal Corporation, Appellees. |
Court | United States State Supreme Court of Florida |
Robert C. Stone of Fuer, Fleet & Abram, J. Leonard Fleet, Hollywood, and Julius L. Goldstein, New York City, for appellant.
E. T. Hunter, Hollywood, for appellees.
This cause is before us on appeal from the Circuit Court, Broward County, to review the judgment of that Court passing directly on the validity of Florida Statutes § 322.262(4), F.S.A.
Appellant was arrested March 18, 1969, in the City of Hollywood and charged with the violation of the Hollywood Municipal Code § 60.01, by operating a vehicle while under the influence of intoxicating liquor or drugs. 1
Appellant entered a plea of not guilty and thereafter on April 3, 1969, his counsel filed demand for jury trial pursuant to Florida Statutes § 322.262(4), F.S.A. The municipal judge, the Honorable George Pallotto, appellee herein, denied the demand for jury trial by order entered April 14, 1969.
Appellant then sought a writ of mandamus in the Circuit Court to compel appellees to grant him a jury trial. The Circuit Court held that Florida Statutes § 322.262(4), F.S.A. was unconstitutional and denied writ of mandamus.
On appeal to this Court appellant contends that Florida Statutes § 322.262(4), F.S.A. is constitutional and entitles him to a jury trial in the Municipal Court on the charge of driving while intoxicated.
The decision below was rendered, and the briefs on appeal to this Court were filed, prior to the decision of this Court in Smith v. Davis, 231 So.2d 517 (Fla.1970). In that case we gave a Negative answer to the following certified question:
'Is a person charged with driving a motor vehicle while under the influence of intoxicating liquor to the extent that his normal faculties were impaired, as a violation of a municipal ordinance, entitled to a trial by jury for such violation.'
In the subsequent decisions of Purdy v. Evans, 2 Robertson v. Bradford, 3 and Robertson v. State ex rel. Harty, 4 this adhered to Smith v. Davis, supra.
Since this Court has determined that Florida Statutes § 322.262(4), F.S.A. did not apply to municipal courts, it is unnecessary to a decision in this case to rule on the constitutionality of the statute. In P. C. Lissenden Co. v. Board of County Commissioners, 5 this Court was confronted with a similar situation wherein the validity of a statute was raised and passed on by the court below but was unnecessary to the disposition of the cause, and stated: 6
In the instant case the courts below did not have the benefits of our decision in Smith v. Davis, supra, and subsequent cases at the time it rendered its decision holding the statute unconstitutional. The decision reached below was correct insofar as it held that appellant was not entitled to a jury trial in a municipal court under Florida Statutes § 322.262, F.S.A.
Accordingly, the decision sought to be reviewed, as modified in accordance with the views above expressed, is affirmed.
It is so ordered.
ADKINS, J., concurs specially with opinion.
Since the decision in the case Sub judice was rendered by the Circuit Court, Fla.Stat. § 322.262(4), F.S.A. was amended by § 4, Ch. 70--279, Laws of Florida, so that it now reads as follows:
Prior to the amendment...
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