STEVEN W. THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas appeals the denial of his post-conviction relief motion, claiming his parents were not properly notified of his court appearance as required by Florida statute. The court reverses and remands for an evidentiary hearing, finding the trial court erred in denying relief without hearing evidence about whether adequate notice efforts were made.
The trial court erred in denying the motion without an evidentiary hearing. A single unsuccessful certified mail attempt does not satisfy the statutory notice requirement, and the record provides no evidence that statutory alternatives or further notification efforts were pursued. The case is remanded for an evidentiary hearing to determine whether proper notice was made or statutory alternatives were satisfied.
[1] A trial court errs in denying a motion for post-conviction relief without an evidentiary hearing when the record does not conclusively show the movant is entitled to no r…
[2] A statutory burden to notify a minor's parents is not satisfied by a single, unsuccessful attempt to contact them via certified mail returned for insufficient address.
Previewing 2 of 4 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“the court's burden of notifying a minor's parents is not satisfied merely by a single attempt to contact the defendant's parents by means of a certified letter when it is returned "unknown" or for similar reasons”
Establishes the core holding that a single failed notification attempt is insufficient to satisfy statutory parental notice requirements.
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Join FLexlaw to unlock all legal intelligenceThomas, a seventeen-year-old minor, appeared in trial court and allegedly informed the judge of his age and provided his parents' correct address: Mr.…
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PER CURIAM.
Thomas appeals the denial without evidentiary hearing of his RCrP 3.850 motion for post-conviction relief.1
In his motion appellant alleged that when he first appeared before the trial court he informed the judge that he was seventeen years old and had never been married. He alleged that he informed the court that his parents’ address was: “Mr. and Mrs. James E. Thomas, 123 N. Linville, Westland, Michigan.” Nevertheless, he said, the notice to parent required by § 925.-07, F.S. 1973, was sent by certified mail to “Catherine Thomas, Westland, Mich.” and was returned for insufficient address. Appellant also alleged that no further effort was made to notify his parents. The trial court denied the motion on the grounds that the record “conclusively” showed that appellant was entitled to no relief. We disagree and remand for an evidentiary hearing.2
The record in fact shows that a notice was sent by certified mail to “Mrs. Catherine Thomas, Westland, Michigan,” and that the letter was returned stamped “unknown” and “insufficient address.” Furthermore, the record is silent as to whether any further effort was made to notify appellant’s parents. The transcript of the first hearing during which appellant alleges he provided the court with his parents’ complete correct address is not included at all. Under these circumstances the trial court erred in denying appellant’s motion without an evidentiary hearing.
In the first place, the court’s burden of notifying a minor’s parents is not satisfied merely by a single attempt to contact the defendant’s parents by means of a certified letter when it is returned “unknown” or for similar reasons.3
Secondly, nothing in the record indicates that the alternative to notice to a parent, as provided for by the statute, was utilized.4 It may be that at the evidentiary hearing the state will be able to show that the statutory alternative was met, that additional and sufficient effort was made to give notice or that appellant’s parents had actual notice.5 But, absent that, appellant is entitled to a new trial. Reversed and remanded for further proceedings not inconsistent herewith.
McNULTY, C. J., and GRIMES and SCHEB, JJ., concur. . On direct appeal appellant’s conviction for second degree murder was affirmed by this court in a decision upholding the sufficiency of the evidence. Thomas v. State (Fla.App.2d 1974), 293 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. State (Fla.App.2d, 1974), 297 So. 2d 67.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Birchie Collins v. Louie L. Wainwright, 146 So. 2d 97 (Fla. 1962)
- Freeze v. Cnty. OF Pinellas, 146 So. 2d 97 (Fla. 1962)
- Warren v. State, 266 So. 2d 114 (Fla. 1st DCA 1972)
- Kaufmann v. State of Fla. Dep't OF Transp., 293 So. 2d 88 (Fla. 3d DCA 1974)
- Williams v. State, 297 So. 2d 67 (Fla. 2d DCA 1974)
- Mitchell v. State, 309 So. 2d 558 (Fla. 2d DCA 1975)