Hutchins, In Interest of, 48306

Citation345 So.2d 703
Decision Date24 March 1977
Docket NumberNo. 48306,48306
PartiesIn the Interest of Linda Faye HUTCHINS, a child.
CourtUnited States State Supreme Court of Florida

Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski and Charles W. Musgrove, Asst. Attys. Gen., for appellant.

Virgil Q. Mayo, Public Defender, and Lewis M. Peacock, Asst. Public Defender, for appellee.

KARL, Justice.

This is a direct appeal from an order of the Circuit Court in and for Calhoun County declaring Chapter 75--48, Section 15(11), Laws of Florida, relating to ungovernable children, to be unconstitutional. We have jurisdiction under Article V, Section 3(b)(1), Florida Constitution.

Linda Faye Hutchins, the appellee, was abandoned by her parents when she was twelve years old. By Order of Commitment to Fosterage entered August 30, 1972, she was placed in the care, custody and supervision of the Division of Family Services as a dependent child. On August 11, 1975, an order was entered, pursuant to the statute before us, finding that Linda Faye, then age fifteen, continued to be a dependent child and that she was ungovernable due to her uncontrollable behavior. Two weeks later, a petition was filed seeking a second adjudication of ungovernability. At this time, counsel was appointed by the court to represent her, and he promptly filed motions attacking the statute and the validity of the first adjudication of ungovernability.

The statute in question, Chapter 75--48, Section 15(11), now appears as Section 39.01(11), Florida Statutes, and provides:

"Ungovernable child' means a child who persistently disobeys the reasonable and lawful demands of his parents or other legal custodians and is beyond their control. For the purposes of this act, the first time a child is adjudicated as ungovernable, he may be defined and treated as a dependent child, and all the provisions of this act relating to dependency shall be applicable. For the second and subsequent adjudications for ungovernability, the child may be defined and treated as a delinquent child, and all the provisions of this act relating to delinquency shall be applicable. If necessary the court may order placement of the child in secure shelter care pending disposition.'

In his order granting the motion to dismiss, the trial judge found that Section 39.01(11) is vague and indefinite in its entirety and that the failure of the statute to include provisions for counsel in the adjudicatory hearings on ungovernability constituted a failure to accord procedural due process as required. The order held the statute to be unconstitutional and invalidated the earlier ungovernability adjudication.

The first question for our determination is the constitutionality vel non of Section 39.01(11), Florida Statutes.

Although the Florida Juvenile Law, Chapter 39, Florida Statutes, is not a penal statute, 1 a child may be found to be delinquent under its provisions and committed until the age of twenty-one. 2 Such a statute, when challenged for vagueness, should be subjected to the same test that is applied to penal laws.

This test was well defined in this court's decision in State v. Llopis, 257 So.2d 17 (Fla.1971), and reiterated most recently in State v. Wershow, et al., 343 So.2d 605 (Fla.) filed February 25, 1977, as follows:

'When exercising its power to declare an offense punishable, the Legislature must inform our citizens with reasonable precision what acts are prohibited. There must be provided an ascertainable standard of guilt, a barometer of conduct must be established, so that no person will be forced to act at his peril. Cramp v. Board of Public Instruction of Orange County, Florida, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285; Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 105 (1947); State (ex rel. Lee) v. Buchanan, 191 So.2d 33, 336 (Fla.1966).'

Before a person subject to the act can be adjudicated an ungovernable child and thereafter be defined and treated as a dependent child, he must have persistently disobeyed the reasonable and lawful demands of his parents or custodians and be beyond their control. There must be a second or subsequent such adjudication before the definition and treatment of the ungovernable child equates with delinquency. We find the language of that portion of the statute to be sufficiently definite to withstand the attack of vagueness.

Furthermore, we do not agree with the trial judge's conclusion that the statute is fatally defective for failure to include provisions requiring counsel for every juvenile alleged to be an ungovernable child. The right to counsel in delinquency proceedings is required by the Fourteenth Amendment of the United States Constitution. In re Gault, supra. That right accrues to the child regardless of the fact that it may not be written into the statute, and therefore, absence of a statutory provision requiring counsel in such proceedings does not negate the validity of the questioned statute.

Since we conclude that Section 39.01(11), Florida Statutes, is constitutional, we have for disposition the question of whether a juvenile alleged to be an ungovernable child is entitled to counsel at every hearing delineated in Section 39.01(11), Florida Statutes.

The United States Supreme Court, in In re Gault, supra, set forth the procedure required to be followed in adjudicatory proceedings relative to the right of the juvenile to counsel, as follows:

'(T)he Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.'

Section 39.01(12) defines a delinquent child as 'a child who commits a violation of law, regardless of where the violation occurs, except the child who commits a juvenile traffic offense and whose case has not been transferred to the circuit court by the court having jurisdiction.'

A child becomes a delinquent child as a result of a hearing 3 and adjudication. 4 Thereafter, the court has the power to make disposition of the matter in various ways, 5 including a commitment to the Division of Youth Services until he reaches the age of twenty-one. 6 In a hearing on a petition in which it is alleged that the child is delinquent, the evidence must establish the status of the child beyond a reasonable doubt. 7 Any child alleged to be a delinquent child under Chapter 39, Florida Statutes, is entitled to the due process protection specified in In re Gault, supra. Cf. State v. Steinhauer, 216 So.2d 214 (Fla.1968).

Section 39.01(11) provides that, for the second and subsequent adjudications for ungovernability, the child may be defined and treated as a delinquent child and all provisions of the act relating to delinquency shall be applicable. That portion of the act establishes an additional basis for a child to acquire the status of delinquent child. Delinquency by the process of adjudications of ungovernability has the same effect on the child and his liberty as any other procedure leading to delinquency.

The parties agree that, at a second or subsequent adjudicatory hearing on ungovernability, the juvenile has the right to counsel since the adjudication may result in the child being defined and treated as a delinquent. But, it is argued, the first adjudication may only result in dependency status, and therefore, the right to counsel need not be accorded at that time.

This court has held that the federal constitution does not require counsel in every dependency case and that whether the standards of due process in delinquency proceedings must be applied will depend upon the relevant circumstances in each case. Potvin v. Keller, 313 So.2d 703 (Fla.1975).

Under the provisions of Chapter 39, Florida Statutes, the status of dependency may be established by a preponderance of evidence, 8 the powers of the court and the Division of Family Services are limited, 9 and only delinquent children may be committed to the Division of Youth Services for custody, care, training and treatment. 10

The first hearing on ungovernability is not necessarily a first step in the adjudication of delinquency. The hearing and the resulting care, custody or supervision by the Division of Family Services may correct any existing problems the child may have and be the last of the child's experiences with the juvenile authorities. In such cases, the constitutional right to counsel is not mandatory. Potvin v. Keller, supra; Cleaver v. Wilcox, 499 F.2d 940 (9th Cir. 1974).

If, however, the first ungovernability adjudication is to be used in a subsequent proceeding in which the child's status may change from dependency to delinquency because of two or more adjudications of ungovernability, the first such adjudicatory hearing is a critical first step in the delinquency determination and the child is entitled to all due process rights at each step in the procedure.

Determining that a juvenile was placed in jeopardy at an adjudicatory hearing, the object of which was to determine whether he had committed certain proscribed acts, the United States Supreme Court, in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), said 'We therefore conclude that respondent was put in jeopardy at the adjudicatory hearing. Jeopardy attached when respondent was 'put to trial before the trier of the facts,' ibid., that is, when the Juvenile Court, as the trier of the facts, began to hear evidence. See Serfass v. United States, 420 U.S. (377) at 388, 95 S.Ct. 1055, (43 L.Ed.2d 265.)'

We conclude that it is constitutionally impermissible to base an adjudication of ungovernability for the second time on a previously conducted hearing in which the child was not instructed as to his right to counsel or provided counsel if an indigent.

We reject the...

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7 cases
  • D. B., In Interest of
    • United States
    • Florida Supreme Court
    • May 16, 1980
    ...right to counsel is mandatory only in juvenile proceedings which concern a possible adjudication of delinquency. In the Interest of Hutchins, 345 So.2d 703 (Fla.1977). Hutchins, however, cannot be controlling since this Court is now required by Davis to provide counsel to indigent parents i......
  • State ex rel. Alton v. Conkling
    • United States
    • Florida District Court of Appeals
    • November 17, 1982
    ...hearing in which the child was not advised of his right to counsel or provided with counsel, if indigent. In Interest of Hutchins, 345 So.2d 703 (Fla.1977). These principles apply here, and on the basis of the cited authorities, it seems clear that the motion to transfer the case to the juv......
  • Palm Beach County ex rel. Adoption of T.G.L.
    • United States
    • Florida District Court of Appeals
    • October 21, 1992
    ...result in detention as a punishment. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In Interest of Hutchins, 345 So.2d 703 (Fla.1977). By contrast, the Florida Supreme Court has specifically held that a constitutional right to counsel does not attach to the "subject......
  • Jones v. State, 95-2337
    • United States
    • Florida District Court of Appeals
    • November 1, 1995
    ...was uncounseled. See Burgett v. Texas, 389 U.S. 109, 113-16, 88 S.Ct. 258, 261-62, 19 L.Ed.2d 319 (1967); In the Interest of Hutchins, 345 So.2d 703, 707 (Fla.1977); State ex rel. Alton v. Conkling, 421 So.2d 1108, 1110-12 (Fla. 5th DCA 1982). The record strongly suggests that defendant's p......
  • Request a trial to view additional results

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