J.H., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida First District Court of Appeal reversed a trial court's denial of a juvenile's motion to dismiss a delinquency petition filed outside the statutory 45-day requirement. The court held that because the original petition contained a fatal defect (wrong victim's name), it did not toll the filing deadline, and the amended petition was therefore untimely and subject to mandatory dismissal.
The court reversed and held that the amended petition should have been dismissed because it was not filed within the 45-day requirement. Since the original petition was fatally defective due to naming the wrong victim, it did not toll the running of the 45-day deadline, and the trial court had no discretion to deny the dismissal motion.
[1] A delinquency petition alleging the wrong victim is fatally defective and does not toll the statutory filing period for subsequent amended petitions.
[2] An amended delinquency petition must be filed within the statutory time limit, even if the original petition was defective.
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Join FLexlaw to unlock all legal intelligence“We conclude that the original petition was fatally defective because it alleged the wrong victim.”
Establishes the fatal flaw in the original petition that prevented it from tolling the statutory filing deadline
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Join FLexlaw to unlock all legal intelligenceOn November 16, 1981, J.H. was taken into custody. On December 14, 1981, the State filed a delinquency petition alleging J.H. committed aggravated bat…
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SHIVERS, Judge.
J.H., a juvenile, raises two points on appeal. We need only address the dispositive Point One: whether the trial court erred in denying appellant J.H.’s motion to dismiss the amended delinquency petition filed against him.
Appellant argues the amended petition should have been dismissed since it was not filed within 45 days from the date appellant was taken into custody. We agree and reverse.
On November 16, 1981, J.H. was taken into custody for purposes of juvenile procedure. On December 14, 1981, the State filed a delinquency petition against appellant, alleging that he had committed aggravated battery on William Klein. On January 4, 1982, the State filed an amended delinquency petition against appellant J.H., changing the name of the victim from William Klein to David Klein.
Prior to the hearing on the amended petition, appellant J.H. moved to dismiss the petition because it contained an entirely new charge against appellant which was not filed within the required time period of 45 days as set forth in section 39.05(6), Fla.Stat. (1981). The trial court found the change was a technical one and ordered that the proceedings could continue on the amended petition. At the delinquency hearing, appellant renewed his motion to dismiss based on the filing requirement of section 39.05(6).
Again the trial court denied appellant’s motion and found appellant guilty of battery. Thereafter, at the disposition hearing, the trial court withheld adjudication of delinquency and placed appellant on community control under the supervision of the Department of Health and Rehabilitative Services.
Appellant contends the amended petition alleged a separate and unique offense from the first petition because it contained a materially different fact from that against which the defense was originally prepared to defend.
Appellee maintains the trial court did not err in denying the motion to dismiss. Ap-pellee argues that appellant failed to show that he was prejudiced by the filing of the petition since the amended petition was filed well before the hearing on the merits.
We conclude that the original petition was fatally defective because it alleged the wrong victim. In T.R. v. State, 364 So. 2d 100 (Fla. 1st DCA 1978), we held that an allegation in a delinquency petition placing ownership of stolen property in a wrong person — that is, naming the wrong victim— was a fatal misallegation because it misled appellant in the preparation of his defense.
Here, since the original petition was defective, the filing of that petition did not toll the running of the 45-day filing requirement and, therefore, did not save the amended petition which was filed outside that time period. T.R. v. State, at 103, and I.H. v. State, 405 So. 2d 450, 453 (Fla. 1st DCA 1981). The amended petition should be dismissed since it was not filed within the 45-day filing requirement set forth in section 39.05(6). The fact that appellant has failed to allege that he was prejudiced by late filing of the amended petition is irrelevant. The statute gives the trial court no discretion to deny a motion to dismiss under section 39.05(6) when it is clear that a petition has not been filed within the designated 45 days. See T.R. v. State, supra.
We hope that David Klein and J.H., who attend the same school, will try to be friends. This will be a test for them and for their families. The court hopes all will earn good grades on this test.
ROBERT P. SMITH, Jr., C.J., and THOMPSON, J., concur.
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M.F. v. State, 583 So. 2d 1383 (Fla. 1991)…BARKETT, Justice. We have for review M.F. v. State, 563 So. 2d 171 (Fla.3d DCA 1990), based on asserted express and direct conflict with D.C.W. v. State, 445 So. 2d 333 (Fla.1984); S.R. v. State, 346 So. 2d 1018 (Fla.1977); J.H. v. State, 424 So. 2d 928 (Fla. 1st DCA 1983); and T.R. v. State, 364 So. 2d 100 (Fla. 1st DCA 1978).1 The issue presented is whether the state can amend a timely-filed petition for juvenile delinquency more than forty-five days after the juvenile is taken into custody by ch…1 / 2
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State v. T.A., 528 So. 2d 974 (Fla. 2d DCA 1988)…ually alleged new charges and were filed outside of the forty-five day period described in section 39.-05(6), we find that the juvenile court properly dismissed the amended petitions. T.R. v. State, 364 So. 2d 100 (Fla. 1st DCA 1978); J.H. v. State, 424 So. 2d 928 (Fla. 1st DCA 1983). See also, Rubin; Johnston. Affirmed. LEHAN and FRANK, JJ., concur.…
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D.C.W. v. State, 445 So. 2d 333 (Fla. 1984)…where the filing of an indictment was held not to toll the running of the time period because there were not grounds, under the juvenile justice statute, for proceeding against the accused juvenile by indictment; and the decisions in J.H. v. State, 424 So. 2d 928 (Fla. 1st DCA 1983), and T.R. v. State, 364 So. 2d 100 (Fla. 1st DCA 1978), where even the filing of delinquency petitions were held not to toll the time because the petitions were fatally defective. Petitioner argues that the district court erred…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- T. R. v. State, 364 So. 2d 100 (Fla. 1st DCA 1978)
- In the Interest of I. H. v. State, 405 So. 2d 450 (Fla. 1st DCA 1981)