Sult v. Weber, 1619

• Decision Date: 27 May 1968
• Docket Number: No. 1619,1619
• Citation: 210 So.2d 739
• Parties: William M. SULT, Superintendent of the Florida School for Boys at Okeechobee, Florida, Appellant, v. D. Wayne WEBER, Appellee.
• Court: Florida District Court of Appeals

Page 739

210 So.2d 739

William M. SULT, Superintendent of the Florida School for Boys at Okeechobee, Florida, Appellant, v. D. Wayne WEBER, Appellee.

No. 1619.

District Court of Appeal of Florida, Fourth District.

May 27, 1968.

Earl Faircloth, Atty. Gen., Tallahassee, and James T. Carlisle, Asst. Atty. Gen., Vero Beach, for appellant.

John A. W. Camillo, of Howard, Camillo, Powers & Payne, Fort Lauderdale, for appellee.

BARNS, PAUL D., Associate Judge.

The lower court, upon petition for writ of habeas corpus and respondent's return, remanded petitioner's son, Rodney Oswald Weber, to the Broward County Juvenile Court for a rehearing within sixty days on the adjudication of the delinquency on which he stood committed, whereupon respondent entered this appeal. The order of remand held that In re Gault, 1967, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, was retroactive in effect and governed. We reverse.

The amended petition for habeas corpus states that Rodney was committed pursuant to two petitions filed in the juvenile court by the court's counsellor, Brian LaVerrier, one on September 7, and another on September 26, 1966.

FIRST ADJUDICATION OF DELINQUENCY

The amended habeas corpus petition states that prior to the filing of petitions against Rodney in the juvenile court on September 7 and 26, 1966, by Brian LaVerrier, counsellor of that court, Rodney was interrogated by the counsellor and did admit to him 'to being publicly intoxicated and using a motor vehicle without authorization.'

Thereafter, at a hearing in the Broward County Juvenile Court on October 11, 1966, after 'all parties entitled to notice of this hearing having been duly notified', and 'the Court having heard the evidence', made findings that:

'* * * RODNEY OSWALD WEBER, a boy of the age of sixteen years and residing in Broward County, Florida, to be a delinquent child within the intent and meaning of Florida Statutes, in that, this boy has violated the laws of the State of Florida having to do with the consumption of alcoholic beverages and public intoxication, to-wit: that on or about August 26, 1966, this boy did admittedly consume alcoholic beverages and was publicly intoxicated at the entrance to the National Guard Armory, State Road $84 and 4 Avenue, Fort Lauderdale, Florida; FURTHER, this boy had been referred to this Court as recently as August 13, 1966 and resisting an officer with violence while being placed under arrest for disorderly conduct; FURTHER, that on or about September 13, 1966, this boy, accompanied by another, did admittedly steal in Pompano Beach, Florida an automobile belonging to one Douglas Barnes; FURTHER, as a result of the above set out misbehavior this boy was taken into custody and placed in the Juvenile Quarters of the Broward County Jail on September 16, 1966 where he remained until September 19, 1966 on which date he was placed in detention at Junior Haven where he has remained until today and while so detained his behavior has been good; FURTHER, that this is the tenth referral of this boy to the office of this Court for various types of delinquent behavior dating from June of 1963, one of which resulted in his commitment to The Florida School for Boys in January of 1965 from where he returned in April of 1966 with considerable progress being made in his academic studies while he attended; FURTHER, that this boy has been enrolled in a program of intense psychological therapy and it is requested, both by his parents and a counsellor of this Court, that he be given one final opportunity of remaining in said program under probationary supervision; FURTHER, it is the opinion of the Court that the interests of this boy, as well as those of his parents and society, might be best served by giving him one final opportunity of returning home with his parents, there to voluntarily mend his ways, before having to resort to more drastic measures.'

Thereupon, the juvenile court placed Rodney on probation and suspended the twelve month sentence then imposed, as follows:

'It is thereupon ORDERED '1. That he shall not violate any law of the United States, the State of Florida, or municipalities thereof;

ADJUDGED and DECREED that: RODNEY OSWALD WEBER, a delinquent boy, shall be committed to the Juvenile Quarters of the Broward County Jail, there to remain for a period of twelve (12) months, with the recommendation that the Sheriff of Broward County transfer him to the County Stockade there to perform useful tasks within his ability, however, that execution of said detention commitment shall be withheld and suspended from day to day and that he shall be returned to detention at Junior Haven, there to remain until he can, by his continuing to adjust, earn consideration for his release, in which event he shall then be released back into the custody of his parents, on probation, under the supervision of Counselor Brian LeVerrier and under such rules as said counselor might impose, for just and only so long as he does observe the following Court imposed conditions of said probation:

'2. That he shall regularly attend school and apply himself to his studies while so attending;

'BE IT UNDERSTOOD by both this boy and his parents that any violation of the above set out Court imposed rules of his probation will cause this Court, without further delay, to invoke the withheld twelve month detention commitment to the County Stockade;'

SECOND ADJUDICATION OF DELINQUENCY

REVOCATION OF PROBATION

On December 29, 1966, a Hollywood policeman called on Rodney at his home and without success attempted to procure a confession from Rodney that he had participated in an assault by showing him two unsigned statements purported to have been made by others implicating Rodney. On the next day, the policeman telephoned Rodney's father and advised him that Rodney was to be incarcerated, but could stay with his father until after the holidays, viz., January 3, 1967, on which date his father brought Rodney to the Hollywood Police Station pursuant to instructions, where Rodney 'signed a purported statement implicating him in the assault', after being 'confronted with the purported confessions of his alleged accomplices'. Thereupon, Rodney was confined and held in the Juvenile Detention Home of Broward County.

On January 12, 1967, Rodney's father was telephoned by the counsellor that there would be a delinquency hearing for Rodney on January 24, 1967, but that the hearing 'would not amount to much' and that Rodney would not be sentenced to the Boys School at Okeechobee or Marianna.

On January 24, 1967, both parents appeared at the hearing, at the conclusion of which the judge entered the order of revocation of probation and commitment. The order of revocation recites that it was after 'all parties entitled to notice of this hearing having been duly notified', and after the court having heard the evidence upon which the court made findings that:

'* * * RODNEY OSWALD WEBER, a boy of the age of sixteen years and residing in Broward County, Florida, and who was adjudged delinquent by an Order of this Court dated October 11, 1966 after which date he was released on probation to his parents, to have violated the terms and conditions as set forth in said Order of Probation by violating the laws of the State of Florida having to do with assault, to-wit: that on or about October 31, 1966 this boy, accompanied by two older companions, did admittedly throw paint in the face of one Warren Leslie Kishbaugh, 7860 N.W. 26th Street, Hollywood, Florida; FURTHER, that although this boy was the one who threw said paint he did permit a companion to assume the blame, which resulted in said companion being sentenced to jail for 120 days; FURTHER, from all indications this boy is not remorseful of the above set out misdeed, but rather he has, in overheard conversations, talked about said offense like it was some sport or game; FURTHER, this boy has been referred to this Court on at least ten (10) previous occasions for various types of delinquent behavior dating from June of 1963, one of which resulted in his commitment to the Florida School for Boys in January of 1965 from where he returned in April of 1966; FURTHER, it appears that all efforts at the local level, including intensive psychological therapy, with which to cope with this boy and his misbehaving ways have met with little or no success, and it is the opinion of the Court that if this boy is to ever become successfully adjusted as to matters of behavior that additional strict guidance and supervision in a controlled environment, for a considerable period of time, with an opportunity to receive further psychological assistance, is most essential, which said guidance and supervision might be best afforded by permitting him to attend the Florida School for Boys.'

Whereupon, Rodney was committed, together with the recommendations of the judge, to the 'Florida School for Boys, there to remain until he shall have earned his release.' The court retained jurisdiction to make further or other orders 'for the welfare of said child'.

Petitioner's grounds for relief are that:

(1) Rodney was not advised of his constitutional rights to be represented by counsel or his constitutional right protecting him against self-incrimination (1) before making the admission to the counsellor of public intoxication and using the motor-vehicle of another without authorization, relative to the October, 1966 hearing; (2) or, before signing the confession at the police station on January 3, 1967, relating to an assault.

(2) The court proceeded on the October, 1966, delinquency hearing without apprising Rodney, or his parents, of his constitutional right to be represented by counsel.

(3) The court on the January 24, 1967, hearing proceeded without apprising Rodney, or his parents, of his right to be represented by counsel.

(4) Neither Rodney nor his parents were given formal or written notice of the charges.

(5) Rodney was...