Opinion
March 25, 1952.
Appeal from the Circuit Court, Dade County, Vincent C. Giblin, J.
R.K. Bell, Miami, for appellant.
Richard W. Ervin, Atty. Gen., and Leonard Pepper, Asst. Atty. Gen., for appellee.
Chapter 17833, Acts of 1937, Laws of Florida, granted the power and authority to Dade County, Florida, as well as other counties of Florida falling within the population bracket, to regulate and restrict within the part of the Dade County not included in any municipality, the location and use of buildings, structures and land; to divide the county into districts, and within such districts to regulate and restrict the erection, construction, repair and use of buildings and to prescribe and enforce regulations to effectuate the purposes of Chapter 17833.
The Board of County Commissioners, pursuant to the provisions of Chapter 17833, adopted resolutions, from time to time, reasonably calculated to control the location and use of buildings, structures and land; type of buildings and structures, as defined by Chapter 17833. Section 12 of the Act provides for the punishment of those persons, firms and corporations violating the regulations as adopted by the Board of County Commissioners. Those persons found guilty of violating the promulgated regulations were deemed guilty of a misdemeanor and should be punished by fine not exceeding $500 or by imprisonment not to exceed thirty days, or by both such fine and imprisonment.
An information in two counts was filed in the Criminal Court of Record of Dade County against the defendant-appellant, E.J. Franc, for the violation of the zoning regulations adopted pursuant to Chapter 17833. Count one charged that appellant unlawfully erected or caused to be erected upon Lots 13 and 14, Block 9, Ojus Gardens a frame addition or shed to a frame building previously constructed thereon, without having obtained a permit for the construction from the Zoning Director and County Engineer, contrary to Section 5(e) of the Dade County Zoning Regulations.
Count two of the information charged that the defendant-appellant, between September 17, 1948, and November 28, 1948, did unlawfully maintain a frame addition or shed on Lots 13 and 14, Block 9, Ojus Gardens Resubdivision, Dade County, Florida, in a zone classified as BU 2A for masonry buildings, in violation of Section 17A of the Dade County Zoning Regulations. The information was transferred to the Court of Crimes of Dade County, Florida. The defendant-appellant was placed upon trial before a jury and was found guilty on Counts one and two of the information. The trial Court sentenced the defendant-appellant to serve thirty days in jail under Counts one and two, which sentences were to run consecutively. Likewise, it was the sentence of the Court that he pay a fine in the sum of $150.
The defendant Franc filed a petition for a writ of habeas corpus in the Circuit Court of Dade County and alleged that he was being deprived of his liberty and unlawfully restrained under the aforesaid judgment as entered in the Court of Crimes of Dade County. In the petition for a writ of habeas corpus filed in the lower Court it was contended that the judgment and sentence entered against defendant Franc was in "contravention of Section 12 of the declaration of Rights of the Constitution of Florida [F.S.A.] and Section 1 of the 14th Amendment of the Federal Constitution." When the controversy was submitted to Judge Giblin below he epitomized the controlling question presented as being "whether the informations on which Franc was convicted in the Court of Crimes of Dade County, Florida, are void because they charge the relator with the commission of no offense punishable under the laws of Florida." The trial court remanded the petitioner but entered an order as prescribed by statute which permitted a review of the order of remand.
It is settled law that where habeas corpus is invoked to obtain the discharge of a person held in custody to answer a criminal charge, it must be shown that the statute under which the charge as made is invalid or that the charge as made is not merely defective in its allegations but wholly failed to state any offense under the laws of Florida. Lehman v. Sawyer, 106 Fla. 396, 143 So. 310, and similar cases. It is contended here that the information was defective because: (1) it failed to allege the commission of the offense in the unincorporated area of Dade County; (2) the regulations were not legally adopted by the Board of County Commissioners under Chapter 17833; (3) the judgments entered below were invalid for various reasons. These contentions are not reviewable in habeas corpus proceedings in this Court. State ex rel. Perky v. Browne, 105 Fla. 631, 142 So. 247.
Pertinent here is Section 12 of Chapter 17833, Acts of 1937, which is viz.: "Section 12. Penalties. — Any person, firm, partnership or corporation violating any of the provisions of this Act or who shall fail to abide by and obey all orders and resolutions promulgated as herein provided for shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by fine not exceeding $500.00 or by imprisonment not to exceed thirty days, or by both such fine and imprisonment." (Emphasis supplied.)
This Court, from time to time, has construed provisions of Chapter 17833. See Glogger v. Bell, 146 Fla. 1, 200 So. 100; State v. Wilson (State v. Coleman), 157 Fla. 342, 25 So.2d 860; Crandon v. State, 158 Fla. 133, 28 So.2d 159; Troup v. Bird, Fla., 53 So.2d 717. We fail to find error in the record.
Affirmed.
SEBRING, C.J., and ROBERTS and MATHEWS, JJ., concur.