Opinion
No. 38860.
February 11, 1970.
Appeal from the Circuit Court for Dade County, James Lawrence King, J.
Gordon G. Oldham, Jr., Assigned State's Atty., and Roy S. Wood, Asst. State's Atty., for appellant.
Steven Falk of Law Officers of O'Malley Ciravolo, Miami, for appellee.
The trial court, in a habeas corpus proceeding, held paragraphs 30.15(a) and 30.15 (b), Code of Metropolitan Dade County, void because of its failure to incorporate the provisions for a jury trial contained in Section 322.262(4), Florida Statutes, F.S.A. The direct appeal here by the Sheriff of Dade County is accepted under authority of Boyd v. County of Dade, 123 So.2d 323 (Fla. 1960).
"Sec. 30-15. Driving while under the influence of intoxicating liquor; narcotics, barbiturates, or other stimulants; penalties.
"(a) It is unlawful and punishable as provided in subsection (b) for any person who is an habitual user of narcotic drugs or any person who is under the influence of alcoholic beverages, narcotic drugs, barbiturates or central nervous system stimulants as defined in Section 404.01, Florida Statutes [F.S.A.], when affected to the extent that his or her normal faculties are impaired, to drive or be in actual physical control of any vehicle within this county.
"(b) Every person who is convicted of a violation of subsection (a) shall for first conviction thereof be punished by imprisonment for not less than forty-eight (48) hours nor more than sixty (60) days or by a fine of not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00) or by both such fine and imprisonment; for a second conviction within a period of three years from the date of a prior conviction for violation of subsection (a), such person shall be punished by imprisonment for not less than ten (10) days nor more than sixty (60) days and, in the discretion of the court, a fine of not more than five hundred dollars ($500.00) or by both such fine and imprisonment; upon a third or subsequent conviction within a period of five years from the date of conviction of the first two (2) or more convictions for violations of subsection (a), such person shall be punished by imprisonment for not less than thirty (30) days nor more than one (1) year and, in the discretion of the court, a fine of not more than one thousand dollars ($1,000.00)."
This case is governed by the decision of this Court rendered this day in the case of Smith v. Davis, 231 So.2d 517 (Fla.)
We are not persuaded by the argument of appellee that because this case arose under the Code of Metropolitan Dade County it is governed by different principles from those involved in the Vero Beach case.
Reversed and remanded for further proceedings consistent herewith.
CARLTON, J., SPECTOR, District Court of Appeal Judge, and VANN, Circuit Judge, concur.
ERVIN, C.J., dissents.