WILLIAM JOHNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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On appeal from a summary denial of a Rule 1 petition (post-conviction relief), the court reversed and remanded because the trial court failed to hold an evidentiary hearing to determine whether the State complied with Florida's statutory requirement to notify a minor defendant's parents or guardians prior to trial.
The trial court's summary denial of the Rule 1 petition without an evidentiary hearing was reversed. The case was remanded with directions to conduct an evidentiary hearing to determine whether the State failed to comply with § 932.38, Fla.Stat.1965, and whether a new trial is warranted.
“On this appeal from a summary denial of appellant's Rule I petition, the State, with admirable candor, concedes that the appeal is governed by Collins v. Wainwright, Fla.1962, 146 So. 2d 97. Therefore, the order denying appellant's Rule 1 petition, without an evidentiary hearing, is reversed.”
Establishes that summary denial without evidentiary hearing was improper and triggers the requirement for reversal under Collins v. Wainwright precedent.
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Join FLexlaw to unlock all legal intelligenceAppellant Johnson, a minor, was charged with an offense and sentenced on June 7, 1961, to a term of six months to ten years. He has served approximate…
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On this appeal from a summary denial of appellant’s Rule I petition, the State, with admirable candor, concedes that the appeal is governed by Collins v. Wainwright, Fla.1962, 146 So.2d 97. Therefore, the order denying appellant’s Rule 1 petition, without an evidentiary hearing, is reversed.
The cause is remanded to the trial court with directions to conduct an eviden-tiary hearing upon the question of whether the State has failed to comply with § 932.-38, Fla.Stat.1965, F.S.A.1 We feel it is important to point out that there are instances when parents have received actual notice, although such does not appear in the record. Bowen v. Cochran, Fla.1960, 121 So.2d 154; Craig v. Cochran, Fla.1961, 132 So.2d 196. It will also be important to determine whether or not the appellant intentionally gave erroneous information concerning the person to be notified. See State ex rel. Fox v. Cochran, Fla.1961, 126 So.2d 883.
We therefore direct the court to conduct the evidentiary hearing and determine whether a new trial is called for. In this connection we note that the appellant was sentenced on June 7, 1961, to a term of six months to ten years. He has now served some six and one-half years. It is possible that the prisoner’s prolific use of Rule I F.S.A. ch. 924 Appendix petitions [this is his fourth] may have resulted in a failure to consider him for termination of his sentence. We therefore recommend that at the time of the evidentiary hearing the court require production of appellant’s prison record.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- In re Court Comm. to Study & Report on Question of Methods of Determining Those Who Should Be Admitted to Practice in Fla., 121 So. 2d 154 (Fla. 1960)
- State ex rel. Fred M. FOX v. Cochran, 126 So. 2d 883 (Fla. 1961)
- Craig v. Cochran, 132 So. 2d 196 (Fla. 1961)
- Birchie Collins v. Louie L. Wainwright, 146 So. 2d 97 (Fla. 1962)
- Freeze v. Cnty. OF Pinellas, 146 So. 2d 97 (Fla. 1962)