CARL DON JOHNSON, PETITIONER,
v.
H. G. COCHRAN, JR., DIRECTOR, DIVISION OF CORRECTIONS, RESPONDENT
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Johnson sought habeas corpus relief claiming his conviction was invalid because the State failed to notify his grandmother, as his legal guardian, of the charges prior to trial as required by Florida Statute Section 932.38. The Florida Supreme Court held that substantial compliance with the notice requirement was achieved, as Johnson's grandmother received registered mail notice of the car theft charge ten days before trial.
The State substantially complied with Section 932.38 where notice of the charge was sent by registered mail to the minor's grandmother ten days before trial and she received it. The notice was sufficient as long as it reasonably described the charge and was furnished a reasonable period of time before trial to enable the guardian to confer with the minor.
“We think the record supports the conclusion that there has been a substantial compliance with Section 932.38, Florida Statutes, F.S.A. The subject statute merely provides that when an unmarried minor is charged with an offense, due notice of the charge prior to the trial thereof shall be given to the parents or guardian of the minor, if the name or address is known to the Court, or the executive officers thereof.”
Establishes the statutory requirement and the Court's finding of compliance with it.
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Join FLexlaw to unlock all legal intelligenceJohnson, an unmarried minor under age 19, pleaded guilty to larceny of an automobile on September 8, 1958, and was sentenced to prison. He claimed the…
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By an original proceeding the petitioner Johnson seeks release from the State prison on a writ of habeas corpus.
We must determine whether the prosecuting officials met the requirements of Section 932.38, Florida Statutes, F.S.A., prior to the trial of the petitioner.
On September S, 1958, pursuant to a plea of guilty, the petitioner was sentenced to a term in the State prison for larceny of an automobile. By his petition he al*489leges that at the time sentence was imposed he was not yet nineteen years of age and was unmarried. He further alleges that there was a failure to notify his “legal guardian”, to wit: his grandmother. Petitioner then asserts that this amounted to a failure to comply with Section 932.38, Florida Statutes, F.S.A., and that this in turn resulted in an illegal conviction and sentence. The return reveals a photostatic copy of a notice to' Fanny M. Johnson, Box 183, Tazewell, Virginia. A registered mail return receipt was signed by her through her agent on August 25, 1958. This was ten days prior to the date of conviction and sentence. The return further shows that according to the records of the Department of Corrections, Fanny M. Johnson is listed as petitioner’s “notification relative.”
We think the record supports the conclusion that there has been a substantial compliance with Section 932.38, Florida Statutes, F.S.A. The subject statute merely provides that when an unmarried minor is charged with an offense, due notice of the charge prior to the trial thereof shall be given to the parents or guardian of the minor, if the name or address is known to the Court, or the executive officers thereof. If such is unknown, then the notice shall be given to any relative or friend designated by the minor.
We have held that the essential mandatory requirement of the statute is that due notice be given. The methods provided for giving the notice are directory. However, in this instance the requirements of the statute were specifically met when the notice that petitioner was held on a charge of “car theft” was sent by registered mail to his grandmother. Snell v. Mayo, Fla., 84 So.2d 581.
There is no doubt that the failure to give reasonable notice before the unmarried minor is tried and sentenced is fatal to the validity of a conviction. State ex rel. Hamilton v. Chapman, 125 Fla. 235, 169 So. 658. However, under the wording of this particular statute the notice is sufficient if it reasonably describes the charge. It must be furnished a reasonable period of time prior to the trial. By this, is meant a notice in time to enable a minor’s parent or guardian or friend to confer with him if it is desired so to do. The purpose of the requirement is not to place upon the State the burden of searching for and bringing in the parent or guardian. The State’s responsibility under the statute is. merely to see that the parent or guardian has the notice and, therefore, the opportunity to come to the assistance of the accused minor. State ex rel. Hamilton v. Chapman., supra; Pitts v. State, 88 Fla. 438, 102 So. 554.
In the instant case the guardian of the accused minor received the notice a full ten days before the date of conviction and sentence. Thére is no contention here that the time allowed was unreasonably short. In fact, it would appear that it was adequate. The sole contention advanced is that no notice was given. The record proves the contrary.
It may well be that this statute, originally enacted as Chapter 6221, Laws of Florida 1911, requires some legislative “overhauling” in order to prescribe in more specific detail the procedures to be followed by the officers of the trial courts. An increasing number of petitions for habeas corpus grounded on alleged failure to meet the requirements of this statute have recently come to our notice. E. g. Kinard v. Cochran, Fla., 113 So.2d 843. However, any changes in the statute must necessarily be accomplished by the Legislature rather than by the Court.
In the instant case we conclude that the requirements of the statute have been met and, therefore, the writ must be discharged and the petitioner remanded to custody.
It is so ordered.
THOMAS, C. J., and TERRELL, HOB-SON and DREW, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Doll Holloway v. State, 216 So. 2d 248 (Fla. 2d DCA 1968)…2d 316; Milligan v. State, 1933, 109 Fla. 219, 147 So. 260 (a death penalty case); Craig v. Cochran, Fla.1961, 132 So. 2d 196; DiMarco v. Cochran, Fla.1961, 127 So. 2d 674; Brockman v. Cochran, Fla.1961, 127 So. 2d 443; Johnson v. Cochran, Fla.1960, 124 So. 2d 488; Bowen v. Cochran, Fla.1960, 121 So. 2d 154; Clay v. State, 1940, 143 Fla. 204, 196 So. 462; James v. State, 1927, 92 Fla. 999, 111 So. 277; Pitts v. State, 1924, 88 Fla. 438, 102 So. 554. The record here shows that the official minutes of the cour…
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McINTOSH v. State, 274 So. 2d 23 (Fla. 2d DCA 1973)…d in the usual manner. Affirmance in Bowen v. Cochran, Fla.1960, 121 So. 2d 154, rested upon a finding of actual notice based on proof that the petitioner’s parents had visited him at the jail two weeks before trial. In Johnson v. Cochran, Fla.1960, 124 So. 2d 488, the file contained a receipt from “Fanny M. Johnson” and evidence that Fanny M. Johnson was listed by the petitioner with the Department of Corrections as his “notification relative.” The Court held that a failure to notify Johnson’s grandmother wa…
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Ervin Albert Brooks v. State, 183 So. 2d 550 (Fla. 3d DCA 1966)…ttedly, the requirements of the statute were not met prior to the first trial. The courts of this State have held that a proceeding against a minor is null and void when the requirements of the statute are not met. See: Johnson v. Cochran, Fla.1960, 124 So. 2d 488; State ex rel. Fox v. Cochran, Fla. 1961, 126 So. 2d 883; Vellucci v. Cochran, [*552] Fla.1962, 138 So. 2d 510; State ex rel. Roberts v. Cochran, Fla.1962, 140 So. 2d 597; Keene v. Cochran, Fla.1962, 146 So. 2d 364; Michell v. State ex rel. Callahan…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Charley Pitts v. State, 88 Fla. 438 (Fla. 1924)
- Kinard v. Cochran, 113 So. 2d 843 (Fla. 1959)
- Snell v. Mayo, 84 So. 2d 581 (Fla. 1956)
- State v. Chapman, 125 Fla. 235 (Fla. 1936)