DeSmedt v. City of North Miami Beach , 1991 Fla. App. LEXIS 13027 ( 1991 )

SCHWARTZ, Chief Judge.

The judgment before us dismissed a complaint which sought a declaratory judgment that a resolution of the North Miami City Commission finally approving a site plan was invalid. The basis of the ruling below was that an original action for such relief was inappropriate. Pursuant to Florida Rule of Appellate Procedure 9.040(c),¹ we treat this appeal as an application for cer-tiorari, see City of Deerfield Beach v. Valliant, 419 So.2d 624 (Fla.1982); Save Brickell Avenue, Inc. v. City of Miami, 393 So.2d 1197, 1198 n. 1 (Fla. 3d DCA 1981), and quash the decision below.

Under the appellate rule which we have already invoked, Fla.R.App.P. 9.040(c), the mistaken complaint below should have been treated as an appropriate notice of appeal, see Fla.R.App.P. 9.030(c)(1)(A)²; City of Deerfield Beach, 419 So.2d at 624; Brickell, 393 So.2d at 1197; see Reed v. City of Hollywood, 483 So.2d 759 (Fla. 4th DCA 1986). Because the complaint was filed within thirty days of the city commission action sought to be reviewed, there is no jurisdictional impediment to this determination.

Certiorari granted.

1 . RULE 9.040 GENERAL PROVISIONS

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(c) Remedy. If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.

2 . RULE 9.030 JURISDICTION OF COURTS

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(c) Jurisdiction of Circuit Courts.

(1) Appeal Jurisdiction. The circuit courts shall review, by appeal:

(A) final orders of lower tribunals as provided by general law.

RULE 9.020 DEFINITIONS

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(d) Lower Tribunal, the court, agency, officer, board, commission or body whose order is to be reviewed.