STATE OF FLORIDA, APPELLANT,
v.
ROBERT J. DARNELL, APPELLEE
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Florida appeals a trial court's dismissal of a desertion and non-support charge against Darnell, who allegedly withheld support for his children while residing in Arkansas. The appellate court affirmed the dismissal, holding that the statute requires both the defendant and his children to be physically present in Florida for the crime to occur.
The trial court properly dismissed the information because Fla. Stat. § 856.04 requires that both the defendant and his children be physically present in Florida for the crime to occur. The statute's language, strictly construed as penal law must be, establishes this jurisdictional requirement.
“At first reading, it is clear that the language of the statute requires that in order for a crime to take place, the defendant and his children must be in the State of Florida.”
Establishes the court's interpretation that physical presence in Florida is a jurisdictional requirement for the crime
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Join FLexlaw to unlock all legal intelligenceDarnell, residing in Arkansas, allegedly intentionally withheld means of support from his minor children who were lawfully residing with their mother …
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This is an appeal by the State of Florida from an order of the Criminal Court of Record of Dade County, Florida, dismissing an information against the defendant in which he was charged with desertion and non-support of his minor children.
The affidavit upon which the Justice of the Peace of Dade County issued the warrant against the defendant charged in effect that the defendant, while not being personally present in the State of Florida and the County of Dade, but residing in the State of Arkansas and other states, intentionally committed acts in the State of Arkansas and other states which knowingly resulted in a crime in Dade County, Florida, in that he withheld means of support from his children who were lawfully residing with their mother in Dade County, Florida.
*128The defendant was extradited from the State of Arkansas. On his return to Dade County, he was brought before the Justice of the Peace for a preliminary hearing and was bound over to the Criminal Court of Record for trial. An information was filed against the defendant charging him with such offense. The charge in the information followed the language used in t.he affidavit and warrant.
The defendant’s attorney filed a motion to dismiss the information on the ground that the court was without jurisdiction. The motion to dismiss was granted on the ground stated.
The state contends that t.he trial court erred in entering the order dismissing the information. We cannot agree.
The statute which the defendant is charged with violating is 856.04 Fla.Stat., F.SA., and reads as follows:
“856.04 — Desertion; withholding support; proviso — Any man who shall in this state desert his wife and children * * [Emphasis supplied.]
At first reading, it is clear that the language of the statute requires that in order for a crime to take place, the defendant and his children must be in the State of Florida. Since § 856.04 F.S.A. is penal in nature, we are obliged to strictly construe its provisions. Stedman v. State, 80 Fla. 547, 86 So. 428. Moreover, § 856.04 F.S.A. was considered before in Dukes v. State, 148 Fla. 109, 3 So.2d 754, and the defendant there challenged the applicability of the statute on the basis that he was not a citizen of the state. In upholding the conviction, the court implied that t,he crucial factor was not citizenship, but whether the defendant and his children were physically present in the state.
In view of the foregoing principal and decision cited above, we therefore affirm the ruling of the trial court.
Affirmed.
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State v. Darnell, 230 So. 2d 151 (Fla. 1970)…BOYD, Justice. This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 217 So. 2d 127. Conflict is alleged with Ennist v. Baden1 and State v. Bennett2. Respondent Darnell was extradited from the State of Arkansas on the basis of a Dade County Justice of the Peace warrant for desertion and non-support of his minor children. After pre…1 / 2
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State v. Darnell, 231 So. 2d 870 (Fla. 3d DCA 1970)…PER CURIAM. Whereas, the judgment of this court was entered on December 24, 1968 (217 So. 2d 127) affirming the order of the Criminal Court of Record for Dade County, Florida, in the above styled cause; and Whereas, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed January 7, 197…
Authorities Cited
- Dukes v. State, 148 Fla. 109 (Fla. 1941)
- Schultz v. State, 80 Fla. 564 (Fla. 1920)
- Stedman v. State, 80 Fla. 547 (Fla. 1920)