Radak, Lawrence W.

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Notice to Parents of Criminal Minors

University of Florida Levin College of Law

Florida Law Review Volume 14 Issue 3 Article 7 September 1961 Notice to Parents of Criminal Minors Lawrence W. Radak Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation Lawrence W. Radak, Notice to Parents of Criminal Minors, 14 Fla. L. Rev. 290 (1961). Available at: https://scholarship.law.ufl.edu/flr/vol14/iss3/7 This Note is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. UNIVERSITY OF FLORIDA LAW REVIEWthan the prohibition of membership as a condition of employmenthas exceeded the authority granted to it under section 14 (b).MORTON J. PERLINNOTICE TO PARENTS OF CRIMINAL MINORSDuring the past two years the Florida Supreme Court has beendeluged with petitions for writs of habeas corpus based on section932.38 of Florida Statutes 1959.' This statute, which was infrequentlyused in the past, requires that due notice of a criminal charge againstan unmarried minor must be given to the parents or guardian beforethe trial; if those persons are unknown, notice must be given to anyadult relative or friend designated by the minor. Service of noticemay be accomplished as for a summons ad respondendum except thatit can be made by registered mail or telegram if the parent orguardian is beyond the jurisdiction of the court.The notice statute, drafted in non-specific language, does not pro-vide a minimum standard by which the courts can be guided inapplying the law. It was left to the judiciary to promulgate guidepostsfor attorneys, who must ascertain whether the notice requirement hasbeen fulfilled.RELATIONSHIP OF SECTION 932.38 TO THE JUVENILE COURT ACTThe notice compelled by section 932.38 is completely divorcedfrom similar requirements imposed by the Juvenile Court Act,2 whichincludes procedures for transferring a child under the age of seven-teen years to a criminal court.3 Upon the exercise of such removalthe criminal laws, including the statute under consideration, be-come applicable. Minor offenders seventeen to twenty-one years ofage are not subject to the Juvenile Court Act,4 and immediatelyupon their detention for trial the notice requirement attaches. Thedecision in Di Marco v. Cochran5 illustrates the importance of ade-quate notice when the minor is being transferred from juvenile1. More cases have reached the Supreme Court since 1959 than in all previousyears since the statute's enactment in 1911.2. FLA. STAT. §39.11 (4) (1959).3. Rules for transferral are set out in FLA. STAT. §39.02 (6) (1959).4. The statutory terminology minor has been construed to mean males andfemales under the age of 21. Riley v. Holmes, 100 Fla. 938, 131 So. 330 (1930);Beekman v. Beekman, 53 Fla. 858, 43 So. 923 (1907).5. 124 So. 2d 130 (Fla. 1960).1Radak: Notice to Parents of Criminal MinorsPublished by UF Law Scholarship Repository, 1961NOTESproceedings to a criminal court. The defendant's mother receivednotice of the pending disposition in the juvenile court and repliedby telegram that she would be unable to attend. On the same daythe case was transferred to the criminal court. The Supreme Courtheld that notice given as required by the Juvenile Court Act doesnot fulfill the notice requirement of section 932.38. The Court statedthat notification of a pending juvenile court action might lead theparents to expect some disposition in the nature of parental custody,and that if they had known of the transfer to a criminal court theymight have provided for legal counsel.DuE NOTICEIn Snell v. Mayo" the petitioner argued vigorously that the statuteexplicitly requires notification by registered mail or telegram. Al-though the Florida Supreme Court stated that "due notice" is man-datory but that the specified method of giving notice is only directory,notice by registered mail seems to be more efficacious from an evi-dentiary viewpoint.The state must notify the proper person, even though not re-quested to do so, unless this duty is frustrated by a minor who liesor withholds necessary information that cannot reasonably be ascer-tained elsewhere.7 The state does have certain presumptions in itsfavor, however. If the transcript of the proceedings contains nothingto indicate that notice has been served, a presumption arises thatthe trial court has performed its duties in accordance with the lawsof the state. If the petitioner fails to submit evidence of impropernotice or lack of notice, the petition will be denied." If a letter iscorrectly addressed, posted, and not returned, it is presumed thatthe parent or guardian received the letter in the due course of mail,and the notice requirement is satisfied even though nothing is everheard from the addressee.9Notice must be given prior to a trial, but it is not required beforea hearing.10 If the proceeding is merely a preliminary investigationthat may result in a trial, no notice is anticipated by the statute; butif the circuit court judge decides to hold the minor for trial, thenotice must be issued immediately."The purpose of the statute is to enable a parent or guardianto confer with the accused before the trial. The state need not seek6. 84 So. 2d 581 (Fla. 1956).7. State ex rel. Fox v. Cochran, 126 So. 2d 883 (Fla. 1961).8. Blocker v. State, 90 Fla. 136, 105 So. 316 (1925).9. Snell v. Mayo, 84 So. 2d 581 (Fla. 1956).10. Shepard v. State, 96 Fla. 873, 119 So. 866 (1928).11. Ors. ATr'Y GEN. FLA. 603 (1948).2Florida Law Review, Vol. 14, Iss. 3 [1961], Art. 7https://scholarship.law.ufl.edu/flr/vol14/iss3/7UNIVERSITY OF FLORIDA LAW REVIEWout or bring in the parent, and the parent is not required to attendor participate in the trial. 2 In Johnson v. Cochran,"13 notice was re-ceived ten days before the trial by a grandmother residing in Vir-ginia. The Court held that the requirement of due notice was ful-filled in this case, and stated that a reasonable description of theoffense charged is sufficient. 14 On the other hand, notification re-ceived a few hours,15 one day,16 or two days1 7 before trial has beenheld to be clearly insufficient.The Supreme Court has accepted the state's contention that therequirement of due notice is met if the parent or guardian actuallyknows of the detention and pending trial even though he was notnotified under the terms of the statute. If the parent receives aletter from the minor, s visits him in his cell, 19 or was present at thecommission of the unlawful act2" or when the child was transferredfrom a juvenile to a criminal court,2" the parent has actual noticeand the official statutory notifiication procedure is superfluous.Effect of Lack of Due NoticeUntil recently the Florida Supreme Court has been inclined toexcuse technical variations from the notice procedure prescribed bythe statute, holding on one occasion that mere error without resultinginjury does not warrant reversal of a conviction. 22 This position wasretained until 1959, when the Court stated in Kinard v. Cochran-2 2that failure to comply with any of the alternatives of the statute isfatal and the petitioner must, of necessity, be discharged. It now ap-pears that failure to serve proper notice will in itself be deemed a12. Pitts v. State, 88 Fla. 438, 102 So. 554 (1924).13. 124 So. 2d 488 (Fla. 1960).14. In McGuirk v. Cochran, 126 So. 2d 555 (Fla. 1961), the Court held thata letter written by the incarcerated minor to his mother, a resident of Michigan,stating that he was being held in jail and wanted cigarette money, was insufficientto show that the parent had notice that her son was being held answerable to theserious crime of burglary.15. State ex rel. Hamilton v. Chapman, 125 Fla. 235, 169 So. 658 (1936).16. Thompson v. Cochran, 126 So. 2d 564 (Fla. 1961).17. Di Marco v. Cochran, 124 So. 2d 130 (Fla. 1960).18. See McGuirk v. Cochran, 126 So. 2d 555 (Fla. 1961), in which the Courtheld a letter to be insufficient for purposes of actual notice.19. Centanni v. Cochran, 126 So. 2d 146 (Fla. 1961); Bowen v. Cochran, 121So. 2d 154 (Fla. 1960); Milligan v. State, 109 Fla. 219, 147 So. 260 (1933).20. Pitts v. State, 88 Fla. 438, 102 So. 554 (1924).21. Brockman v. Cochran, 127 So. 2d 443 (Fla. 1961).22. Whitten v. State, 86 Fla. 111, 97 So. 496 (1923).23. 113 So. 2d 843 (Fla. 1959).3Radak: Notice to Parents of Criminal MinorsPublished by UF Law Scholarship Repository, 1961NOTESmiscarriage of justice sufficient for reversal. This view has beensubstantiated by a 1961 Supreme Court decision.24When the court finds reversible error, the sentence is dischargedbut the minor is not relieved from further prosecution. The courtcan remand him to the custody of the Director of the Division ofCorrections, give proper notice to parents or guardian, require an-other plea to the information, and proceed with a retrial.2- Thereforethe purpose of drawing the court's attention to the error is to gamblefor an acquittal at a second trial or for a decision by the state thata second trial would be impractical.UNMARRIED MINORSThe notice statute is applicable only to unmarried minors, butinterpretation of the statutory language "not married" is left to thecourts. In Milligan v. State 2 the petitioner argued that the convic-tion of a divorced minor was improper because his parents had notbeen notified before the trial. The Supreme Court sustained theconviction, stating that the "marital relation having been established,its dissolution by annulment or divorce does not revitalize the rightsconferred by the statute." 27 Two recent Florida decisions are in accordwith this position.28 It is difficult to reconcile this viewpoint withthe Court's statement in State ex rel. Fox v. Cochran29 that "the stat-ute ...was enacted as a safeguard for minors .. .because of theiryouth and inexperience." If the Court was correct in its appraisalof the policy behind the notice requirement, it appears that thestatute should be amended to conform with the Juvenile Court Act,which applies to all minors, whether single, married, or divorced30CONCLUSIONThe current flood of litigation concerning parental notice is ap-parently the result of several recent successful writs of habeas corpusin cases involving inadequate notice. The fact that defense attorneysare now fully aware of this recourse emphasizes the need for strictadherence to clarified statutory procedures.24. Raggen v. Cochran, 126 So. 2d 145 (Fla. 1961).25. E.g., Thompson v. Cochran, 126 So. 2d 564 (Fla. 1961); McGuirk v.Cochran, 126 So. 2d 555 (Fla. 1961); Di Marco v. Cochran, 124 So. 2d 130 (Fla.1960); State ex rel. Hamilton v. Chapman, 125 Fla. 235, 169 So. 658 (1936).26. 109 Fla. 219, 147 So. 261 (1933).27. Id. at 224, 147 So. at 262.28. Harris v. Cochran, 122 So. 2d 465 (Fla. 1960); Hewitt v. Cochran, 117 So.2d 3 (Fla. 1960).29. 126 So. 2d 883, 884 (Fla. 1961).30. See FLA. STAT. §39.01 (6) (1959).4Florida Law Review, Vol. 14, Iss. 3 [1961], Art. 7https://scholarship.law.ufl.edu/flr/vol14/iss3/7

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Notice to Parents of Criminal Minors

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University of Florida Levin College of Law