Johnson v. State

205 So. 2d 694, 1967 Fla. App. LEXIS 4237

Opinion

PEARSON, Judge.

On this appeal from a summary denial of appellant’s Rule I petition, the State, with admirable candor, concedes that the appeal is governed by Collins v. Wainwright, Fla.1962, 146 So.2d 97. Therefore, the order denying appellant’s Rule 1 petition, without an evidentiary hearing, is reversed.

The cause is remanded to the trial court with directions to conduct an eviden-tiary hearing upon the question of whether the State has failed to comply with § 932.-38, Fla.Stat.1965, F.S.A.¹ We feel it is important to point out that there are instances when parents have received actual notice, although such does not appear in the record. Bowen v. Cochran, Fla.1960, 121 So.2d 154; Craig v. Cochran, Fla.1961, 132 So.2d 196. It will also be important to determine whether or not the appellant intentionally gave erroneous information concerning the person to be notified. See State ex rel. Fox v. Cochran, Fla.1961, 126 So.2d 883.

We therefore direct the court to conduct the evidentiary hearing and determine whether a new trial is called for. In this connection we note that the appellant was sentenced on June 7, 1961, to a term of six months to ten years. He has now served some six and one-half years. It is possible that the prisoner’s prolific use of Rule I F.S.A. ch. 924 Appendix petitions [this is his fourth] may have resulted in a failure to consider him for termination of his sentence. We therefore recommend that at the time of the evidentiary hearing the court require production of appellant’s prison record.

Reversed and remanded.

1 . Section 932.38, Fla.Stat. (1965) provides in part as follows:

“When any minor not married, may be charged with any offense and brought before any of the courts, including municipal court, of this state, due notice of such charge prior to the trial thereof shall be given to the parents or guardian of such minor, provided the name and address of such parent or guardian may be known to the court, or to the executive officers thereof. In the event that the name of such parent or guardian is not known or made known to the court or executive officer or cannot be reasonably ascertained by him, then such notice shall be given to any other relative or friend whom such minor may designate.”