EDWARD ROMERO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edward Romero appealed the denial of his motion to vacate his marijuana conviction, arguing the State failed to comply with Florida's statutory requirement to notify his parents or guardian that he was charged as an unmarried minor. The court held that the State's failure to provide required parental notice rendered the judgment and sentence void and entitled Romero to a new trial.
The judgment and sentence is void due to the State's failure to comply with the statutory requirement to notify the minor's parents or guardian. However, the appropriate relief is not discharge from the crime but rather a new trial for the appellant.
[1] A judgment and sentence are void when the State fails to comply with statutory notice requirements regarding an unmarried minor defendant.
[2] The State has an affirmative duty to reasonably ascertain and notify a minor defendant's parents or guardian of criminal charges.
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“Under case law interpreting the statute, the State had an affirmative duty to reasonably ascertain the names and addresses of the proper person or persons to be notified, and to notify them in compliance with the statute.”
Establishes the State's affirmative statutory obligation in cases involving unmarried minors
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Join FLexlaw to unlock all legal intelligenceRomero was charged with sale of marijuana as an unmarried minor. At the time of trial, he was an unmarried minor and no notice of the charge had been …
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Appellant’s conviction of sale of marijuana was affirmed by this court, Romero v. State, Fla.App.1971, 251 So.2d 137, but without prejudice to appellant’s right to collaterally attack the judgment and sentence for the State’s alleged non-compliance with, F.S., Section 925.07, F.S.A. Subsequently, appellant filed in the trial court a motion under Rule 3.850, RCrP, 33 F.S.A., alleging that at the time appellant was charged with the offense, he was an unmarried minor and that the State had failed to comply with the provision of, F.S., Section 925.07, F.S.A. before trial. The present appeal is from the order denying that motion following an evidentiary hearing.
The record before us reflects without dispute that at the time of the trial appellant was an unmarried minor and that no notice of the charge against him had been given to his parents or guardian, nor did any such person have actual knowledge thereof. The record reflects that the name and address of appellant’s mother, as his legal guardian, could have been reasonably ascertained upon sufficient inquiry. Under case law interpreting the statute, the State *542had an affirmative duty to reasonably ascertain the names and addresses of the proper person or persons to be notified, and to notify them in compliance with the statute. State ex rel. Fox v. Cochran, Fla.1961, 126 So.2d 883; Jackson v. State, Fla.App.1969, 224 So.2d 734; Milligan v. State, Fla.App.1965, 177 So.2d 75. Under these circumstances, the judgment and sentence is held to be void. The appropriate relief, however, is not to discharge appellant from the crime, but rather to grant him a new trial. Jackson v. State, Fla.App.1969, 224 So.2d 734.
The order denying the motion to vacate is reversed, and this cause remanded with instructions to enter an order vacating the judgment and sentence and granting appellant a new trial.
Reversed and remanded.
REED, C. J., and MAGER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Milligan v. State, 177 So. 2d 75 (Fla. 2d DCA 1965)
- State ex rel. Fred M. FOX v. Cochran, 126 So. 2d 883 (Fla. 1961)
- Romero v. State, 251 So. 2d 137 (Fla. 4th DCA 1971)
- Jackson v. State, 224 So. 2d 734 (Fla. 3d DCA 1969)