#### HEALTH CLUBS, INC., Petitioner, v. Donald W. ENGLUND, Englund Properties, Respondent.

No. 79-824/NT4-46.

District Court of Appeal of Florida, Fifth District.

Oct. 31, 1979.

Robert J. Buonauro of Robert J. Buonau-ro, P. A., Orlando, for petitioner.

Gregory Wilson of Taylor, Wilson & Sharpe, P. A., Orlando, for respondent.

MOORE, JOHN H. II, Associate Judge.

This petition for certiorari seeks review of a decision of the Circuit Court acting in its appellate capacity. In that capacity the Court affirmed a summary judgment in favor of the appellee (lessor) and ordered the appellant (lessee) to vacate the leased premises.

In affirming the trial judge, the Circuit Court, sua sponte, applied §§ 796.01 and 796.02 (Fla.Stat.1977) although the record does not appear to reflect that either party raised these statutes in their pleadings. The County Court’s judgment was founded upon a breach of the lease. The record supports this judgment; particularly, evidence was presented which established that the lessee breached the third paragraph of the lease which provides:

> “The tenant shall promptly execute and comply with all statutes, ordinances, rules, orders, regulations and requirements of the federal, state and city governments, and of any and all their departments and bureaus applicable to said premises, for the correction, prevention and abatement of nuisances or other *454grievances in, upon or connected with said premises during said terms .

We therefore find it unnecessary to reach the issue relied upon by the Circuit Court.

We hasten to add that although the Circuit Court may have erred, that does not necessarily mean that it exceeded its jurisdiction or that it departed from the essential requirements of law. *Grandin Lake Shore Assoc., Inc.*v. *Underwood,*351 So.2d 1131 (Fla. 1st DCA 1977); see also, *City of Jacksonville Beach v. Waybright,*130 Fla. 525, 178 So. 401 (1938). Nor may common law certiorari be employed to obtain a second appeal. *Griffin v. State,*367 So.2d 736 (Fla. 4th DCA 1979).

Finding competent evidence in the record to support the Circuit Court’s affirmance, even though it may be based upon an incorrect legal principle, the petition for certio-rari is denied.

CERTIORARI DENIED.

ANSTEAD, HARRY LEE, Associate Judge, concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

In my opinion the circuit court acting in its appellate capacity departed from the essential requirements of law and we should issue our writ of certiorari and quash that appellate decision. In ruling as it did the circuit court specifically held that a landlord is entitled to evict a tenant under the provisions of Section 796.02,1*Florida Statutes*(1977) notwithstanding the tenant was not convicted under Section 796.01, *Florida Statutes*(19.77) even though the statute clearly requires such conviction.2 It goes without saying, almost, that appellate courts cannot rewrite the law and that is exactly what the circuit court has done. That sole appellate judge held “the word convicted should be given its broader meaning to cover the situation when a lessee has been ‘criminally convicted’ as well as ‘civilly convicted’, to uphold the manifest intent of the legislature.” The concept of a “civil conviction” such as this is unheard of. The “civil conviction” the circuit judge refers to is a finding by another circuit judge, in another related case, that the tenant was guilty of maintaining a place of lewdness on the subject premises. This finding by another circuit judge in another civil case falls woefully short of the usual definitions of what it takes to amount to a “conviction.” For instance, the degree of proof on the civil side is less than “beyond a reasonable doubt” required for a conviction. Also in the civil injunctive relief proceeding, which the other circuit judge was trying, no jury was provided nor, indeed, permitted since it was an action formerly cognizable in equity. To say such a thing as “civil conviction” equals the statutorily required conviction of the offense is wrong, departs from the essential requirements of the law and should be quashed. I should note finally that the finding of the other circuit judge was still on appeal when the circuit court entered its appellate order here and that is mentioned in that appellate “order & mandate.” It is still here on appeal.

1

. 796.02 *Lease of house to expire on conviction.*— When the lessee of a dwelling is convicted of the offense mentioned in the preceding section, the lease or contract for letting the house shall, at the option of the lessor, become void, and the lessor shall have the like remedy to recover the possession as against a tenant holding over after the expiration of his term.

2

. 796.01 *Keeping house of ill fame.*— Whoever keeps a house of ill fame, resorted to for the purpose of prostitution or lewdness, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.-083.