City of Miami v. Rosa

RAY PEARSON, Circuit Judge.

Appellant who was the defendant in the trial court was convicted of violating provisions of chapter 53 of ordinance no. 5521 of the Miami City Code.

The only point of any merit submitted on appeal was the question whether the defendant was properly before the court on a warrant issued by an assistant city attorney deputized as a special city clerk.

Both parties have agreed that the warrant was issued under provisions of section 59 and section 24-A of the city code.

Subparagraph C of section 59 reads in part as follows — “Judges of the municipal court shall have the power to summon witnesses; issue warrants for arrests of persons upon affidavit duly filed; to administer oaths and do all other acts necessary for the performance of their duties.”

Division A of section 24 reads in part as follows — “Any policeman in the city of Miami may arrest without warrant any person violating any of the ordinances of the city committed in the presence of such officer, and when knowledge of the violation of any ordinance of the city shall come to said chief of police or policeman, not committed in his presence-, he ¡shall make affidavit before the judge or clerk of the municipal court against the person charged with such violation, whereupon, said judge or clerk shall issue a warrant for the arrest of such person.”

From examination of the warrant before the court the affidavit before the deputy city clerk was made by one other than a police officer.

Accordingly, the conviction is reversed and the defendant is ordered and directed to be discharged.