STATE
v.
FALCON
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court excluded a license revocation notice as evidence because the state failed to provide the affidavit required by Florida Statute 322.251(2) to prove proper notice. The decision establishes that statutory notice requirements for license revocation proceedings cannot be bypassed, even with certified mail documentation.
The court held that the notice must be excluded because the required affidavit from the specific Department of Highway Safety and Motor Vehicles employee was not provided. A certified mail identification number alone is insufficient to prove proper mailing, as such a number can be obtained without actually posting the mail.
[1] Proof of notice of license cancellation, suspension, or revocation by mail is complete upon expiration of 20 days after deposit in the United States mail.
[2] Proof of the giving of notice and order of cancellation, suspension, or revocation must be made by affidavit of the employee of the department who causes the notice and o…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The affidavit shall be sworn to by the employee upon the issuance of such notice and order and shall name the person to whom such notice and order was given and specify the time, place, and manner of the giving thereof.”
Establishes the mandatory statutory requirement for the affidavit that must accompany license revocation notices.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe state sought to introduce an order of license revocation and suspension against the defendant. The notice was certified by the custodian of record…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Affidavit Of Service cases and more on FLexlaw
This cause came before the court on oral pre-trial motion, hearing of which was stipulated by the parties, that the order of license revocation, suspension or cancellation sought to be introduced should be excluded on the grounds that the notice sent to the defendant in this case was defective in that it did not include the affidavit required by F.S.322.251 (2) (1978). That statute states—
“The giving of notice and order of cancellation, suspension, or revocation by mail is complete upon expiration of 20 days after deposit in the United States mail. Proof of the giving of notice and order of cancellation, suspension or revocation in either such manner shall be made by affidavit of the employee of the department who causes the notice and order to be given. The affidavit shall be sworn to by the employee upon the issuance of such notice and order and shall name the person to whom such notice and order was given and specify the time, place, and manner of the giving thereof.”
Notice to persons whose licenses are being cancelled, suspended or revoked is now required by the 1978 amended Florida Statute 322.251, which states that all orders of cancellation, suspension or *196revocation issued under the provisions of Chapter 322 shall be given by personal delivery or by mailing a certified letter, postage prepaid, to the defendant’s last known address.
Before October 1, 1978, notice was not required for habitual offenders. Compare 322.251 (1977) which only required notice if otherwise required in Chapter 322. Proof of the sending of this notice must be made by introducing an affidavit of the employee of the Department of Highway Safety and Motor Vehicles who caused the order and notice to be given. In addition this affidavit must have been sworn to by the employee upon the issuance of such notice. F.S. 322.251 (1978).
In the copy of the notice, certified by the custodian of the records of the Division of Driver Licenses, there is no affidavit of the employee of the Department of Highway Safety, particularly specified in the statute, either appended to or executed on the original notice. This court cannot assume that the custodian of the records is the required employee. In addition, the certification does not say whether or not the notice was in fact mailed. All that exists is a certified mail identification number (#1801443), which can be obtained by a user of the mails without actually posting the mail.
It is ordered and adjudged that the oral motion to exclude the notice sought to be admitted without the required affidavit, is granted.