Milligan v. State, 5746
| Decision Date | 02 July 1965 |
| Docket Number | No. 5746,5746 |
| Citation | 177 So.2d 75 |
| Parties | Arthur L. MILLIGAN, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Arthur L. Milligan, in pro. per.
Earl Faircloth, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.
Appellant seeks review of the denial of his motion for post conviction relief pursuant to the provisions of Criminal Procedure Rule No. 1, F.S.A., ch. 924 Appendix.
Appellant, with counsel, pleaded guilty to breaking and entering and petit larceny. He was adjudged guilty and sentenced to five years imprisonment. At the time of this adjudication and sentencing, appellant was twenty years of age.
Appellant's motion alleged failure of the trial court to comply with the 'notice to parents' requirements of Section 932.38, Florida Statutes, F.S.A. The statute provides that when an unmarried minor is charged with any offense, and is brought before any 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.' Failure to comply with the provisions of the statute renders the judgment and sentence void. See Michell v. State ex. rel. Callahan, Fla.App.1963, 154 So.2d 701 and cases cited therein.
The motion was denied, after hearing, on the grounds that (1) notice of the charge was attempted to be served on appellant's father on the basis of information furnished by appellant, but the premises turned out to be an empty house; and (2) appellant was represented by an attorney at arraignment and all subsequent stages of the proceedings.
In support of ground number (1), the State cites ut to State ex rel. Fox v. Cochran, Fla.1961, 126 So.2d 883, wherein the following language appears:
'* * * If, of course, the minor, upon being asked to give any of the pertinent information, should willfully withhold such knowledge, or should give false information, he would be in no position to complain of a failure to give notice, if the information could not otherwise be reasonably ascertained. * * *' At 884.
Justice Hobson, the author of Fox, noted that the situation described in the above language was not presented by the cause before the court. Therefore, what the Supreme Court had to say about willful withholding of information, or the giving of false information, was obiter dictum. We, nevertheless, are of the view that dictum of the highest court of this State, in the absence of a contrary decision by that court, should be given persuasive weight in this court. Accordingly, the willful withholding of information, or the willful giving of incorrect information, concerning the names and addresses of an unmarried minor's parents or guardians, shall constitute an implied waiver of the notice requirements of Section 932.38.
The adoption of this rule, however, does not require an affirmance of this cause as the record before us now stands. The concluding clause of the Fox dictum qualifies the earlier statement with the words, '* * * if the information could not otherwise be reasonably ascertained.' This qualification is consistent with the holding in Fox...
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Blanco v. Dugger, 87-6685-Civ.
...collateral appellate opinions. In addressing this issue on the direct appeal, the Supreme Court of Florida relied on Milligan v. State, 177 So.2d 75 (Fla. 2d DCA 1965) for the proposition that "the ultimate decision as to which witnesses should be presented is the defendant's." Blanco I, 45......
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State Com'n on Ethics v. Sullivan
...Co., 355 So.2d 154 (Fla. 4th DCA 1978), O'Sullivan v. City of Deerfield Beach, 232 So.2d 33 (Fla. 4th DCA 1970), and Milligan v. State, 177 So.2d 75 (Fla. 2d DCA 1965). Accordingly, Key Haven (Fla.1982), requires examination to determine if it contradicts previous holdings of the Supreme Ke......
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...grounds, 606 So.2d 1156 (Fla.1992); O'Sullivan v. City of Deerfield Beach, 232 So.2d 33, 35 (Fla. 4th DCA 1970); Milligan v. State, 177 So.2d 75, 76 (Fla. 2d DCA 1965); see also Ard v. Ard, 395 So.2d 586, 587 (Fla. 1st DCA 1981) (Supreme Court dicta does not relieve District Court of Appeal......
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Puglisi v. State
...did not err “[u]nder the[ ] circumstances,” we said that “[t]he ultimate decision is the defendant's.” Id. (citing Milligan v. State, 177 So.2d 75 (Fla. 2d DCA 1965)).18 In light of our holding above, we recede from our decision in Blanco to the extent that we held that as to the presentati......