RICHARD MCINTOSH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard McIntosh was convicted of a felony but the trial court failed to comply with Florida Statute § 925.07 requiring notice to parents. The appellate court reversed, holding that the trial judge's finding of actual notice was insufficient because the parents were never informed of the nature, seriousness, or court jurisdiction of the charges despite statutory notice requirements.
The court held that the State's failure to comply with the statutory notice requirement was not cured by the alleged actual notice, as the parents had no knowledge of the nature, seriousness, or court jurisdiction of the charges. Mere knowledge that the defendant was in custody is insufficient; actual notice must include knowledge of the serious nature of the charges.
[1] A statute requiring notice to parents of a minor defendant's trial must be strictly complied with, and the state has the burden of proving compliance.
[2] Actual notice to a parent of a minor defendant's trial is insufficient if it does not include knowledge of the nature of the charge, its felony status, or the court in wh…
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Join FLexlaw to unlock all legal intelligence“Perhaps the Legislature will change the law. Until it does, we must follow it. The State knew that the statute had not been complied with and had ample time to do so.”
Establishes the court's strict adherence to statutory requirements and the State's failure to fulfill its statutory duty to serve notice.
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Join FLexlaw to unlock all legal intelligenceMcIntosh was convicted in November and turned 21 in May. The State attempted service of required statutory notice on his parents in Connecticut in Oct…
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McIntosh was convicted in November and became twenty-one the following May. In October, the State had attempted service of the notice required by Fla.Stat. § 925.07 (1971), F.S.A., on his parents, but without success. They live in Connecticut. At the trial McIntosh said that “they know I am here.” McIntosh had called his father and told him that he had been “busted,” whereupon he got parental advice unrelated to the defense of his case, and hung up. There is in this record absolutely no evidence that the parents knew the nature of the charge, that it was a felony, or in which court it was pending. A motion for post-conviction relief was denied by the trial judge on a finding that the parents had actual notice. The judge recited in the order denying relief that the father undertook to lecture his son, provoking the termination of the conversation, which the judge nevertheless held to constitute actual notice. The order goes on to recite that McIntosh was “just short of his 21st birthday, had completed two years of military service, was making his own way in the world, and at all times was represented by able and competent counsel.”
Perhaps the Legislature will change the law. Until it does, we must follow it. The State knew that the statute had not been complied with and had ample time to do so. No case cited by the State in support of the trial .judge’s order is remotely sufficient to permit affirmance. In Snell v. Mayo, Fla.1956, 84 So.2d 581, our Supreme Court held that actual notice received through regular mail was sufficient, despite a claim that the notice was not *24served 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 was no ground for habeas corpus. Branson v. Cochran, Fla.1962, 138 So.2d 316, was a case in which petitioner’s allegation was found to be false. The record showed that .he had been abandoned by his father as a child and that his mother visited the jail repeatedly over a period of three and one-half months before trial. Craig v. Cochran, Fla.1961, 132 So.2d 196, is to like effect.
Perhaps the closest case to the present one is McGuirk v. Cochran, Fla.1961, 126 So.2d 555, in which the State proved knowledge on the parent’s part that the petitioner was “in the Dade County Jail awaiting trial.” That is slightly more specific than the strongest case which can be made for the knowledge held by McIntosh’s father. Habeas corpus was granted in McGuirk because that language “is not sufficient to show actual knowledge on the part of the parent that the petitioner was held to answer the serious charges of robbery.” See also Thompson v. Cochran, Fla.1961, 126 So.2d 564.
The order denying post-conviction relief in Case No. 72-232 is reversed and the cause is remanded with directions to grant a new trial. Thereupon the direct appeal in Case No. 72-94, in which the former Public Defender for the„ Twelfth Circuit found no arguable merit, becomes moot. Consequently we grant his motion to withdraw as counsel and dismiss the appeal as moot. Under the circumstances there is no need to appoint substitute counsel.
Case 72-232 reversed and remanded. In case 72-94, motion to withdraw as counsel granted; appeal dismissed upon entry of mandate in 72-232.
HOBSON and BOARDMAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Williams v. State, 297 So. 2d 67 (Fla. 2d DCA 1974)…la. 235, 169 So. 658, 660 and DiMarco v. Cochran, Fla.1961, 127 So. 2d 674, the parents’ notice was received at a time so close to that of the scheduled trial that it was simply purposeless and, in fact, “futile”. In McIntosh v. State, Fla.App.1973, 274 So. 2d 23, there was no showing that the defendant’s parents had ever had [*69] any notice of the nature of the charges against him. Neither of these circumstances is present in this case, in which Mrs. Williams gained actual knowledge of the charges against…
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King v. State, 281 So. 2d 612 (Fla. 2d DCA 1973)…tified of the offense with which their son was charged as provided in Section 925.07, Florida Statutes, F.S.A., (formerly Section 932.38, Florida Statutes). See Williams v. Cochran, Fla.1961, 126 So. 2d 887, see also McIntosh v. State, Fla.App.1973, 274 So. 2d 23. In the McIntosh case, supra, Chief Judge Mann of this court, in a well-reasoned opinion, stated, stated: Perhaps the Legislature will change- the law. Until it does, we must follow it. . . . Appellant testified at the arraignment hearing that he…
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Douglas v. State, 295 So. 2d 361 (Fla. 3d DCA 1974)…tence in this case must be reversed because of the failure of the record to show the discharge of the statutory duty. See Collins v. Wainwright, Fla.1962, 146 So. 2d 97; Warren v. State, Fla.App.1972, 266 So. 2d 114; McIntosh v. State, Fla.App.1973, 274 So. 2d 23. Having reached this conclusion it is not necessary for us to consider the validity of the sentence. Reversed and remanded for a new trial.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities 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)
- Snell v. Mayo, 84 So. 2d 581 (Fla. 1956)
- Johnson v. Cochran, 124 So. 2d 488 (Fla. 1960)
- Craig v. Cochran, 132 So. 2d 196 (Fla. 1961)
- Thompson v. Cochran, 126 So. 2d 564 (Fla. 1961)
- McGUIRK v. Cochran, 126 So. 2d 555 (Fla. 1961)
- Branson v. Cochran, 138 So. 2d 316 (Fla. 1962)