Sabio v. Russell

472 So. 2d 869 (1985)

Deborah SABIO, Appellant,
v.
Daniel J. RUSSELL, Appellee.

No. 85-312.

District Court of Appeal of Florida, Third District.

July 16, 1985.

Jonathan Thiele, Miami, and Elizabeth Baker, South Miami, for appellant.

No appearance for appellee.

Sandy Karlan, Coral Gables, and Diane M. Seaberg, Miami, for the Florida Ass'n of Women Lawyers as amicus curiae.

Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.

PER CURIAM.

Sabio appeals an order finding section 741.30, Florida Statutes (Supp. 1984) unconstitutional and dismissing her petition, made pursuant to that section, seeking protection from domestic violence. We vacate the order appealed from with directions.

It is apparent from the record that Russell was never served with process and was not before the trial court. He is likewise not before this court. Consequently, any adjudication as to the unconstitutionality of the enactment at issue constitutes an advisory opinion which neither court is authorized to issue. Sarasota-Fruitville Drainage District v. Certain Lands, 80 So. 2d 335 (Fla. 1955); Ervin v. Taylor, 66 So. 2d 816 (Fla. 1953). Accordingly, the order under review is vacated with directions to reinstate the petition.

Vacated with directions.