Bayes v. City of Hollywood , 426 So. 2d 1078 ( 1983 )

PER CURIAM.

This petition for common law certiorari seeks to overturn a decision of the circuit court affirming a county court conviction. Petitioner was convicted and fined for violating Section 5-43 of the Code of Municipal Ordinances of the City of Hollywood. The case was prosecuted below by the City of Hollywood. The ordinance in question requires that license decals issued by the City be affixed to and displayed on all coin operated movie machines in the City. The petitioner was operating a commercial establishment in which thirteen such machines were present without the necessary decals. The proof at trial showed these machines had been seized by the City in a raid on the same commercial establishment a short time before petitioner’s arrest. The license decals had been removed by agents of the City during the seizure. The machines were then returned to the owner without the decals pursuant to a court order which held the seizure of the machines unconstitutional. Before petitioner’s arrest, the store owner applied for replacement decals but the City had not yet issued them when City police officers arrested petitioner, a clerk in the store, for operating the machines without decals.

At trial, the county judge found petitioner guilty and announced that removal of the decals by the City was simply not “pertinent” to the charged offense of operating without the decals. On appeal to the circuit court, the conviction was affirmed by an opinion of July 22, 1982. This opinion recites that the sole issue was the timeliness of certain pretrial motions to dismiss which raised the issue of misconduct and the removal of the decals. The county court had refused to rule upon the motions to dismiss because one was filed six days prior to trial and the other was filed on the day of trial. The circuit court concluded that the motions were untimely and that the county court had not abused its discretion in refusing to consider the motions. Unfortunately, and for reasons not reflected by the record, the circuit court did not go further and review the merits of petitioner’s defense of misconduct on the part of the police or other municipal authorities. Even if these matters were not properly raised by the pretrial motions, the defense was certainly presented during the trial. This was the central point presented to the circuit court in the appeal and the court departed from the essential requirements of law in failing to consider the merits of the entire case.

We thus grant the writ; quash the decision; and remand to the circuit court for review on the merits.

CERTIORARI GRANTED.

LETTS, C.J., and BERANEK and GLICKSTEIN, JJ., concur.