Paul v. City of Miami Beach

519 So.2d 1150 (1988) David PAUL, Appellant, v. CITY OF MIAMI BEACH, a Municipal Corporation of the State of Florida, and Joseph Z. Fleming, Appellees. No. 88-217. District Court of Appeal of Florida, Third District. February 16, 1988. Fine, Jacobson, Schwartz, Nash, Block & England, Miami, for appellant. Arnold Weiner, City Atty., Miami Beach, Fleming and Klink, Miami, for appellees. Before SCHWARTZ, C.J., and HENDRY and NESBITT, JJ. ON MOTION TO DISMISS SCHWARTZ, Chief Judge. The operative facts and controlling issue in this case are identical to those in Johnson v. Citizens State Bank, 518 So.2d 410 (Fla. 1st DCA 1988). For the reasons stated in Johnson, we follow that decision in holding that an improvidently taken appeal from a judgment of the circuit court sitting in its review capacity may not be effectively treated as an appropriate petition for writ of certiorari when the notice of appeal is not transmitted to the appellate court — where certiorari must be initiated — within thirty days of the rendition of the lower court order sought to be reviewed. In sum, the appeal does not lie; if considered as a petition for certiorari, it is untimely. Since that is what occurred in the instant case, the motion to dismiss must be granted. We certify to the supreme court the question stated in Johnson. Appeal dismissed, question certified.