Opinion
No. 43,552.
December 5, 1973.
Writ of Certiorari to the District Court of Appeal, First District.
Morris W. Milton of Minnis, Williams Milton, St. Petersburg, for petitioners.
John C. Chew, City Atty. and H. Pope Hamrick, Jr. of Kinsey, Vincent, Pyle Williams, Daytona Beach, for respondent.
The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ and have heard argument of the parties. Upon further consideration of the matter, we have determined that the cited decisions present no direct conflict as required by Article V, Section 3(b)(3), Florida Constitution, F.S.A. Therefore, the writ must be and is hereby discharged.
It is so ordered.
CARLTON, C.J., and BOYD, McCAIN and DEKLE, JJ., concur.
ERVIN, J., dissents with opinion.
This case relates to City of Daytona Beach v. Brown (Fla.App. 1973), 273 So.2d 124. The Circuit Court on due appeal from the Municipal Court had held a disorderly conduct ordinance facially unconstitutional. On a second appeal to the District Court from the Circuit Court, that court held the ordinance constitutional. Irrespective of the merits of the ordinance, certiorari lies here to quash the unauthorized appellate decision of the District Court which acted beyond its appellate jurisdiction. See Section 6, Article V, Constitution of Florida 1885, as amended (now an unrepealed statute), which governed the jurisdiction of the appeals below in this case. Also see State v. Katz (Fla.App.3d), 108 So.2d 60. The question arises do we exercise our supervisory jurisdiction to maintain the appellate jurisdiction of our judicial system, as the Constitution provides, or do we "sweep under the rug" constitutional jurisdictional limits when we disagree with an initial decision below.