Opinion
No. 72-111.
September 26, 1972.
Petition for review from the Circuit Court, Palm Beach County, Joseph P. Metzger, J.
Wallis E. Schulle, of Fisher, Prior, Puritt Schulle, West Palm Beach, for petitioner.
Thomas E. Sholts and Ronald E. Jones, West Palm Beach, for respondent.
The petitioner seeks to review by common-law certiorari an order of the circuit court affirming the petitioner's conviction in the Municipal Court of the Town of Palm Beach Shores on a charge of violating a municipal ordinance forbidding "Disturbance of the Peace." Petitioner claims the ordinance to be unconstitutional. This defense was not raised in the trial court, and the circuit judge on appeal refused to consider the defense because of this failure to raise it at trial.
The constitutionality of the ordinance under which petitioner was convicted in the municipal court goes to the very foundation of the validity of the charge against petitioner and hence involves what the courts designate as "fundamental error" which may be considered on appeal even though not raised in the trial court. Sanford v. Rubin, Fla. 1970, 237 So.2d 134; Palm Beach County v. Green, Fla. 1965, 179 So.2d 356; Town of Monticello v. Finlayson, 1945, 156 Fla. 568, 23 So.2d 843. The circuit court, sitting in its appellate capacity, departed from the essential requirements of law when it refused to consider the appellate issue properly before it, to-wit: the constitutionality vel non of the ordinance under which petitioner was convicted.
Certiorari is granted and the order of the circuit court under review is quashed. This cause is remanded to the circuit court in its appellate capacity with directions that it consider and pass upon the question of the constitutionality of the ordinance.
OWEN and MAGER, JJ., and WEHLE, VICTOR O., Associate Judge, concur.