Richardson v. State ex rel. Milton

• Decision Date: 18 February 1969
• Docket Number: No. 67--660,67--660
• Citation: 219 So.2d 77
• Court: Florida District Court of Appeals
• Parties: Jack C. RICHARDSON, Superintendent of Walter Beckham Youth Hall, Appellant, v. STATE of Florida ex rel. Richard Douglas MILTON, a 15 year old minor, by Patricia Milton and William Milton, his parents and next friends, Appellees.

Page 77

219 So.2d 77

Jack C. RICHARDSON, Superintendent of Walter Beckham Youth Hall, Appellant, v. STATE of Florida ex rel. Richard Douglas MILTON, a 15 year old minor, by Patricia Milton and William Milton, his parents and next friends, Appellees.

No. 67--660.

District Court of Appeal of Florida, Third District.

Feb. 18, 1969.

Earl Faircloth, Atty. Gen., and Arden M. Siegendorf, Asst. Atty. Gen., for appellant.

Tobias Simon, Alfred Feinberg, Miami, Jack Greenberg, James M. Nabrit, III, and Michael Meltsner, New York City, for appellees.

Before CHARLES CARROLL, C.J., and HENDRY and SWANN, JJ.

HENDRY, Judge.

This is an appeal taken by the supervisory authorities of a juvenile correction institute. By order of the Circuit Court of Dade County, the original proceeding which led to the incarceration of the minor appellee was set aside and a new hearing ordered. We are asked to decide one basic point of law, which is: whether the constitutional mandate which guarantees juveniles right to assistance of counsel at hearings, as determined in the case of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, shall apply retroactively to either of two situations which occurred before that opinion was delivered.

The appellee was under the age of sixteen at all times pertinent hereto. In October, 1966, officials of Juvenile and Domestic Relations Court of Dade County filed in that court a petition charging that the appellee was a delinquent child within the statutory meaning of § 39.05(1) Fla.Stat. F.S.A., by reason of his husbitual truancy from public school. A hearing was held on the matter in November, 1966, wherein the court found the appellee to be a delinquent child and imposed an indefinite sentence. He was placed on probation, however, and remained under the supervision of the court for an indefinite probationary period.

Then, in April of 1967, officials of the juvenile court filed a 'Petition for Rehearing' in the juvenile court. Such petition contained a statement summarizing the sentence and probation which the court had previously imposed at the first hearing. It went on to allege specific violations of the probationary terms, to-wit, reckless driving, associating with a known felon, and truancy from school. The petition concluded with a prayer that '* * * the above named child and parents * * * be notified to appear before this court on a day certain to be dealt with according to law.' On May 16, 1966, the hearing was held, at which the appellee's probation was revoked and he was sentenced to a six month period of incarceration in the Kendall Home. Soon thereafter, habeas corpus proceedings were initiated in the Circuit Court of Dade County, and, after appropriate hearings were held, that court entered its order which made these conclusions of law:

(1) The appellee had right to counsel at the first hearing, held prior to the Gault decision, Supra, and was not advised of such right; and,

(2) that the appellee did not waive such right. The writ of habeas corpus was therefore granted '* * * and the petitioner (appellee) is remanded to the juvenile court for trial with a counsel, if desired, within 15 days of this order.'

The first issue which confronts us now is whether the circuit court was within its jurisdictional bounds when it entertained the habeas corpus proceedings. The constitutional grant of power to issue writs of habeas corpus authorized the circuit court to entertain the petition and to issue a writ of habeas corpus in a case such as this. But inasmuch as the petition disclosed that the person was being held under a court order entered in a proceeding for which the circuit court does not have original jurisdiction, and by a court over which the circuit court does not have appellate or supervisory jurisdiction, the circuit court's exercise of jurisdiction in the habeas corpus proceeding was subject to certain limitations. As this court pointed out in Clark v. State ex rel. Rubin, Fla.App.1960, 122 So.2d 807, 812, and cases cited there, in such circumstance the circuit court may issue the writ to inquire into the cause of detention of the petitioner, and may discharge the person so held in custody if it is shown that his retention is without jurisdiction or that the order under which he is held is void; but the circuit court is not empowered in the habeas corpus proceeding to discharge a person so held under an order of the other court, for reasons other than illegality of the order, such as upon a determination of irregularity, insufficiency in form or substance or for other matters going to the propriety of the order.

Here the circuit court held that the order under which the petitioner was held was illegal and void for failure of the court to observe the person's constitutional right to be represented by counsel at the initial hearing in which he was committed as well as upon the subsequent proceeding in which his probation was revoked and detention ordered. Upon the circuit court so holding, the proper judgment to have been entered would be to grant the writ and discharge the petitioner. Instead, the circuit court remanded the petitioner, not to the respondent, but to the juvenile court for a new trial, to be held within 15 days, with directions (necessarily implied from the holdings expressed in the judgment) that in the new trial the juvenile court should apply the rules and standards outlined in the Gault case.

We find error and reverse the judgment, not only because the circuit court, having no appellate or supervisory jurisdiction, over the juvenile court, undertook to direct or supervise further proceedings in the case there, but also because we disagree with the ruling of the circuit court on which its judgment was based, which was that In re Gault, supra, should be applied retroactively in this case.

Moving on to the circuit court's findings, we hold that the court erred when it retroactively applied the Gault standards to the hearing of November, 1966. It is not ncessary now to set out the detailed rationale which we are bound to apply in extracting the U.S. Supreme Court's criteria for retroactive application of a constitutional principle. This has been ably done in a scholarly opinion by Justice Thornal in State v. Steinhauer, Fla.1968, 216 So.2d 214, and we are in accord with its holdings. Moreover, although the Steinhauer case specifically has left unanswered the question of whether Gault is to be retroactively applicable to a juvenile hearing wherein the initial determination of delinquency is made, ¹ we hold that on the facts before us the doctrine, of retroactive application is not justified with regard to the hearing of November, 1966. Our reason is that we do not feel that the reliability of the ultimate fact-finding process would have been measurably affected by the absence or presence of counsel. ² The probability of having made an incorrect determination of delinquency of an innocent person is remote and the employment of prior existing standards provided a reasonably reliable evidence for arriving at the truth, despite announced improvements available under the new standards in Gault to furnish counsel to an indigent respondent. See also Sult v. Weber, Fla.App.1968, 210 So.2d 739; Cradle v. Peyton, 1967, 208 Va. 243, 156 S.E.2d 874, 878.

The parties have, by this appeal, also raised the correctness of the second hearing of May 16, 1967, wherein the appellee's probation was revoked, and his incarceration was ordered. It must be noted that the Gault opinion was not delivered until May 15, 1967; however, the 'Petition for Rehearing' which instigated the proceedings in question was filed with the juvenile court on April 27, 1967, thus preceding Gault by about two weeks.

Appellee has predicated his attack on the premise that the was denied due process of law in the second hearing, in that this mandate was violated:

'* * * 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, the counsel will be appointed to represent the child.' In re Gault, 387 U.S. at 41, 87 S.Ct. at 1451.

The record shows that two continuances were granted so that the appellee's parents could obtain private counsel, thus reflecting that they were apprised with actual knowledge of their right to counsel. Nevertheless, notwithstanding such actual knowledge, the failure of the juvenile court to completely inform the juvenile and his parents of the above-outlined guidepost from the Gault case might well constitute error where it not for the sequence of dates here.

The initial problem is whether the second hearing was commenced before the Gault decision, by virtue of the time when the 'Petition For Rehearing' was filed (in which case, the next issue is the question of retroactivity); or, whether the date of the second hearing itself, i.e., May 16, 1967, is the crucial date which determines how the Gault decision is to affect the appellee (in which case, the next issue is whether the juvenile court properly applied Gault prospectively to the appellee). We have searched the Florida common law and have not uncovered any cases which squarely deal with the issue of commencement of juvenile proceedings. Thus, we must look to other sources. Although it is well recognized that juvenile proceedings are not criminal in nature, analogous problems within the criminal law have been presented to courts before and their opinions should not go unrecognized. In State v. Emanuel, Fla.App.1963, 153 So.2d 839, the court held that the filing of a warrant, sufficient for arrest purposes when placed in the hands of a proper officer for service, commenced the state's prosecution of a crime and tolled the statute of limitations. This case construed § 932.05 Fla.Stat. F.S.A....