STATE OF FLORIDA, APPELLANT,
v.
IN THE INTEREST OF D.I., APPELLEE
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The court held that refiling a delinquency petition with a corrected victim tolls the statutory limitation period, allowing the second petition to be considered timely.
The state filed a delinquency petition for petty theft, but listed the wrong victim. After the statutory 45-day period expired, the state refiled the …
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PER CURIAM.
The state appeals from an order dismissing a petition for adjudication of delinquency. We reverse on the authority of State v. Garofalo, 453 So. 2d 905 (Fla. 4th DCA 1984).
The state filed a petition for adjudication of delinquency which charged the juvenile with petty theft from a Winn Dixie store. After realizing that the petition listed the wrong victim, the state re-filed the petition, this time correctly listing the victim as Shopper’s Drug Mart. Under section 39.-05(6), Florida Statutes (1983), the state has forty-five days (from custody) within which it must file a delinquency petition. Whereas the initial defective petition was filed within that time period, the second petition was filed after expiration of the forty-five day period. Consequently, the lower court dismissed the petition.
In Garofalo, supra, we held that the substitution of the name of the true victim in a second information neither substantially altered the first information nor hampered the defendant’s ability to prepare a competent defense. Thus we concluded that the relevant statutory limitation period was tolled by the filing of the original eharge. Garofalo, 453 So. 2d at 906. See also D.C.W. v. State, 445 So. 2d 333 (Fla.1984); Rubin v. State, 390 So. 2d 322 (Fla.1980).
In the case sub judice, although defective, the initial petition nevertheless put the juvenile on notice of the offense for which he was being charged. Consequently, he was able to prepare a competent defense. Moreover, we find that the second petition did not substantially alter the charge,
Accordingly, we reverse the order of dismissal and remand for further proceedings not inconsistent with this opinion.
GLICKSTEIN, HURLEY and WALDEN, JJ., concur.
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M.F. v. State, 583 So. 2d 1383 (Fla. 1991)…ed on J.H. to hold that the state cannot amend a delinquency petition after the statutory period elapses to correct its error in naming the “wrong victim” of a burglary.7 District courts reached conclusions contrary to these cases in State v. D.I., 474 So. 2d 408 (Fla. 4th DCA), opinion withdrawn on other grounds, 477 So. 2d 71 (Fla. 4th DCA 1985), and L.G.R. v. State, 485 So. 2d 13 (Fla. 3d DCA 1986). In D.I., the state’s timely-filed initial petition alleged that D.I. committed a petit theft from a Winn Di…
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In the Interest of K.A.B. v. Hyson, 483 So. 2d 898 (Fla. 5th DCA 1986)…inquency cases. See E.N. v. State, 484 So. 2d 676 (Fla.1986); D.A.E. v. State, 478 So. 2d 815 (Fla.1985); State v. G.P., 476 So. 2d 1272 (Fla.1985); J.P.W. v. State, 476 So. 2d 148 (Fla.1985); State v. C.C., 476 So. 2d 144 (Fla.1985); State v. D.I., 474 So. 2d 408 (Fla. 4th DCA 1985). See also State v. W.A.M., reported in 7 FLW 186 (Fla. 5th DCA January 22, 1982), and the revised opinion published at 412 So. 2d 49 (Fla. 5th DCA 1982). The court rules, statutes, and constitution of the State of Florida contai…
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Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Murray Rubin v. State, 390 So. 2d 322 (Fla. 1980)
- State v. Garofalo, 453 So. 2d 905 (Fla. 4th DCA 1984)
- D.C.W. v. State, 445 So. 2d 333 (Fla. 1984)