
    SCHERER v STATE OF FLORIDA
    Case No. 88-4252
    Second Judicial Circuit, Leon County
    May 14, 1990
   OPINION OF THE COURT

P. KEVIN DAVEY, Circuit Judge.

Appellant, Thomas Scherer, seeks reversal of his conviction for disturbing the peace under Section 15-2 of the Tallahassee Municipal Code. Essentially, he argues that the City ordinance under which he was convicted is unconstitutional.

After careful review of the record on appeal and the submissions of the parties, the Court finds that the appellant’s conviction should be affirmed. The ordinance is constitutional, since a notice requirement is implied in the ordinance.

Under the facts of this case, Scherer did not violate the ordinance when his neighbor complained to him about the volume of his radio. However, once the independent and disinterested law enforcement officer advised him that the volume of his radio was in violation of this code provision, he violated the ordinance, when he refused the officer’s request to reduce the volume.

Unquestionably, there has been a marked and long standing , antagonism between Mr. Scherer and his neighbors, J.F. and Sandra Barrow. There is evidence that none of the parties have acted neighborly for quite some time. It is the hope of this Court that these adults will henceforth act in a mature and reasonable manner toward each other.

Appellant also contends that the trial court should have granted his Motion for Continuance. A review of the record indicates that the trial judge was well within his discretion in denying the continuance. The conviction will not be reversed on this ground.

Inasmuch as the trial court below entered an Order of No Imprisonment in this case, the Appellant shall not be subject to incarceration in the event he should violate the terms of his probation. However, the Court could punish such violation of probation by other means available to it. Accordingly, it is

ORDERED AND ADJUDGED that the Defendant’s conviction is AFFIRMED.

DONE AND ORDERED in Chambers at Tallahassee, Leon County, Florida, this 14th day of May, 1990.  