GREGORY EUGENE MITCHELL AND LEON STUCKMAN, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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The court held that an appellate court cannot review alleged noncompliance with a notice statute for minors when the record is insufficient, and the proper remedy is post-conviction relief.
[1] A claim that a minor defendant was not given proper notice of criminal charges, as required by statute, is not properly raised on direct appeal when the record is insuffi…
[2] A defendant seeking relief for alleged noncompliance with statutory notice requirements for minors must pursue post-conviction relief.
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Join FLexlaw to unlock all legal intelligenceAppellant Mitchell appealed the revocation of his probation and sentence, alleging the State failed to provide notice to his parent or guardian as req…
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HOBSON, Judge.
This is a consolidated appeal whereby the appellants appeal the revocation of probation and subsequent sentences of five years each with credit for time served.
Appellant Mitchell alleges that at the time of the original offense he was a minor and that Florida Statute § 925.07 requiring the parent or guardian of a minor to be given notice of the criminal charge was not complied with by the State. The record on appeal reveals that at the time Mitchell pled guilty to the charge he informed the court that he was 22 years of age and divorced. It also appears of record that at the time of sentencing on the original charge and at the revocation hearing appellant indicated that he was 17 years of age at the time of the offense. There is no indication from the record whether or not Mitchell’s parents were served with notice or had actual notice of the charges.
Appellee contends that under Florida Statute § 924.06(2) the appellate court may review only proceedings after the order of probation and that any relief on this issue is properly the subject for post-conviction relief under Criminal Procedure Rule 3.-850.
Our sister court in Romero v. State, Fla.App.4th 1971, 251 So. 2d 137, held that under circumstances such as these where the record is insufficient to permit a review of the alleged noncompliance with Florida Statute § 925.07, the proper remedy would be under Criminal Procedure Rule 3.850.
The other points on appeal have been considered and found to be without merit. See Singletary v. State, Fla.App.4th 1974, 290 So. 2d 116; Jones v. State, Fla.App.2d 1974, 297 So. 2d 93; and Scott v. State, Fla.App.3rd 1974, 305 So. 2d 289.
For the foregoing reasons, the orders revoking probation and the imposition of sentences with credit for time served are affirmed, without prejudice to appellant Mitchell to raise the noncompliance of Florida Statute § 925.07 in a motion provided for under Criminal Rule 3.850.
Affirmed.
McNULTY, C. J., and BOARDMAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thomas v. State, 336 So. 2d 670 (Fla. 2d DCA 1976)…So. 2d 88. . The state argues that this point should have been raised on direct appeal and could not be raised on a RCrP 3.850 motion for post-conviction relief. This contention is clearly without merit. E. g., Mitchell v. State (Fla.App.2d 1975), 309 So. 2d 558. . Cf. Collins v. Wainwright (Fla.1962), 146 So. 2d 97. Also see Warren v. State (Fla.App. 1st, 1972), 266 So. 2d 114. . Section 925.07 requires notice to “any friend or relative designated by the minor” if parents are unknown. . See Williams v.…
Authorities Cited
- Singletary v. State, 290 So. 2d 116 (Fla. 4th DCA 1974)
- Jones v. State, 297 So. 2d 93 (Fla. 2d DCA 1974)
- Romero v. State, 251 So. 2d 137 (Fla. 4th DCA 1971)
- Scott v. State, 305 So. 2d 289 (Fla. 3d DCA 1974)