Legal Summons Question

[Felch]

I went by the courthouse today, because I thought I had a hearing on a speeding ticket. I didn't see my name on the docket, so I went downstairs to check with the traffic court desk. When I got there, the guy told me that my courtdate was actually last Friday, the 24th. So I'm an idiot for not keeping track of that, I'm okay though.

Then he tells me that there's a bench warrant out for me, for failure to appear.



I'm going nuts here trying to figure this out. I knew that there was a separate charge, for driving on a suspended license. But I'd never gotten a summons. I'd only received notice for the speeding ticket.

The clerk printed off both records, and asked me if I had moved or changed address or anything. I said no, and he showed me that the record for the suspended charge had my last name, my street, and my street number all incorrect. It's no wonder that the post office never delivered mail that wasn't even sent out to me.

The guy said I have to turn myself in at the county jail, which I'm going to do Wednesday. But before I do that I wanted to check and see if anybody knew if my defense is sound.

Basically, my defense is that I shouldn't get a failure to appear because my summons was mailed to the wrong address. It sounds pretty reasonable to me.

Anybody?

[SlowwHand]

It's worth a shot.

Take all food with a possibility of spoiling and trash it.

[chequita guevara]

Slowwy being nice to a wanted criminal? Will wonders never cease?

[Felch]

It's worth a shot.

Good to hear I'm not nuts in thinking this. The clerk said it's worth a shot too. I just don't want to go there today in case I'm locked up for my birthday. Plus I wanted to get my various affairs in order.

[chequita guevara]

When's your birthday? Tomorrow?

[MikeH]

If it was me I would get advice from a lawyer immediately.

[Zkribbler]

Contact a lawyer. If you can't afford one, try legal aid or the public defenders office.

Bring a utility bill, rental agreement or some such to prove that you live where you actally live.

States laws differ, but in California they have to try and serve you with the summons personally. There's back-up methods if that doesn't work. --But there's also "sewer service," where the process server dumps your summons down the sewer and swears he actually served you. Because you've actually never been served, my fear is that this is what's happened here. That's why I say, get a lawyer.

[chequita guevara]

And have bail set aside.

[Ming]

If it was me I would get advice from a lawyer immediately.

This man knows of what he speaks

A local lawyer who knows the people can do wonders.
They also keep you from doing something really stupid.

[Darius871]

I'd also recommend hiring a lawyer, assuming it's a big enough fine to be worth the cost.

It's tough to say what the judge might do since many driving-related cases are in fact civil "remedial" actions by the state rather than criminal fines, and civil judgments are a lot harder to overturn on notice grounds than any criminal cases. It also depends a lot on what state you're in and what the applicable statute says about actual vs. constructive notice.

That said, in general it'd take a real ball-buster of a judge to not dismiss the failure to appear charge if you show up and explain, so long as them having the wrong address wasn't a result of your own neglect. It'd play it safe to assert that there's not yet any personal jurisdiction in particular, since failure to do so has been taken as a waiver in many cases.

FWIW, a search of all reported state-level cases and law reviews nationwide for different combinations of "failure to appear," "failed to appear," "incorrect address," and "wrong address" doesn't bring anything with analogous facts.


EDIT: The closest thing was more about bond than notice, but at least states the bolded proposition:

Cite: 956 So.2d 1292, 32 Fla. L. Weekly D1432

District Court of Appeal of Florida,
Fourth District.
Octavia LEE, Petitioner,
v.
STATE of Florida, Respondent.

No. 4D07-2000.

June 6, 2007.

Petition for writ of habeas corpus to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jorge Labarga, Judge; L.T. Case No. 06-10285 CFA02.
Robert Ingham of Murphy & O'Brien, LLC, Miami, for petitioner.

Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for respondent.

PER CURIAM.

Octavia Lee petitions this court for a writ of habeas corpus. She alleges that she is illegally detained without bond. Lee, released on surety bond, failed to appear at a hearing where the state was to file charges and at arraignment because the notices of hearing were sent to an incorrect address. The circuit court ordered a warrant for Lee's arrest and bond forfeiture. Lee then moved to set bond or to reinstate bond. The trial court denied the motion without making any legal or factual findings required pursuant to Florida Rule of Criminal Procedure 3.132(c)(2).

The state concedes, and we agree, that the trial court improperly denied petitioner's motion to set or reinstate bond without making findings that Lee's failures to appear were willful and that no reasonable bond conditions could secure Lee's presence at trial. Resendes v. Bradshaw, 935 So.2d 19, 20 (Fla. 4th DCA 2006); Johnson v. Jenne, 913 So.2d 740 (Fla. 4th DCA 2005); see also § 907.041(4)(c)1, Fla. Stat. (2006). We therefore grant the petition for writ of habeas corpus, quash the trial court order denying bond, and remand for the court to hold a hearing at which it shall determine whether the failures to appear were willful and if there are any reasonable bond conditions that can assure Lee's presence at trial.


GUNTHER, STONE and FARMER, JJ., concur.

EDIT: Another interesting case shows how constructive notice didn't cut it where it was a defendant notifying the clerk's office, but as always it was totally dependent on the state statute's notice requirements. What state are we talking about here?

Cite: 903 N.E.2d 1065 (Table), 2009 WL 606433 (Ind.App.)

Court of Appeals of Indiana.
Robert T. CUMMINS, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

No. 42A05-0805-CR-277.

March 9, 2009.

...

On March 14, 2008, Cummins filed a motion to dismiss, alleging that he had to be brought to trial within 180 days of September 4, 2007. A hearing on the motion was held on March 17, 2008. On March 24, 2008, the trial court denied the motion, finding:

...

2. That the Defendant, Robert T. Cummins, failed to properly notify the Knox Superior Court 1 of his request for disposition of his pending criminal charges.

3. That while a representative of the Knox County Prosecutor's Office did pick up the Certified Mail intended for the “Clerk of the Court” on September 4, 2007, the Certified Mail in question was, in fact, sent to the wrong address. The mail in question was sent to the address of the Knox County Prosecutor at 102 N. 7th Street, Vincennes, Indiana, rather than to the Office of the Knox County Clerk at 111 N. 7th Street, Vincennes, Indiana.

4. That while the Court understands and appreciates that a series of unfortunate events prevented the Defendant's notice from reaching the Knox Superior Court 1, the fact remains that the Court was not notified as required by Article 3 of the detainer statute, I .C. 35-33-10-4.

...

[MikeH]

I say contact the lawyer immediately because some judges look particularly unfavourably on things like "I didn't turn myself in immediately because I didn't want to miss my birthday".

[MOBIUS]

Logically yes.

However the courts are c*nts, so don't expect such an obviously smooth ride. It reminds me of a similar incident in NZ where one day I went into a police station to report that my bike had been stolen only to be told that there was a warrant out for my arrest for failure to appear at a summons over an unpaid parking fine.

About a year or so before my car had been stolen, which I had duly reported. I'd not heard anything else and had moved soon after (the police still had my contact details). Apparently my car had been parked where it proceeded to rack up quite an impressive array of parking tickets which I knew nothing about - not to mention that a simple check on the car would have proved it was stolen.

Anyway my defence was that as the car had been stolen, the tickets were not my fault - check with the police. When checking there was no record of my car having been stolen on their database - they had wiped it! Also proof that I was no longer at the address at the time of the summons also wouldn't wash - I was guilty in their eyes!

Ultimately I remembered that I had needed the police report to prove to the vehicle tax office that the Road Tax sticker I'd been too lazy to stick on my car could be refunded due to the car being stolen and my not needing it any more. THEY still had the proof of the police report that I'd registered the car as stolen - however despite having this proof I STILL had to attend my new court summons!!! Also, despite my clearly open and shut case, I was still made to feel as though it was somehow all my fault - the c*nts!

In the end, apart from being an illogical and bureaucratic waste of my time - as well as taxpayer's money, it was an interesting process as I'd never been to court before...

So, much as you think it is totally obvious that you have absolutely nothing to worry about - they'll probably still try and find a way to do you for it...

Moral of the story: If I hadn't have been too lazy to stick my road tax to the car for at least about two weeks (which in itself is illegal) - I would have been ****ed...

[Zkribbler]

Bring a utility bill, rental agreement or some such to prove that you live where you actally live.

You say you got notice of the speeding ticket? Was it sent to your correct address? If so, add a copy of it to your pile of evidence.

[Darius871]

I say contact the lawyer immediately

I know professional responsibility rules bind me to make that recommendation, but let's be honest here - is ~$300 of an attorney's time worth it to avoid a ~$50-200 fine (which an economically rational person would discount to even less based on the low probability of its actually accruing)? We're not talking about a murder charge here. Failure to appear in felony cases brings fines into the thousands and/or significant jailtime, but typical failure to appear statutes only fine "not less than" $200 or so for piddly-**** traffic administration. It'd help to know what state this is, but that's the norm.

[Felch]

When's your birthday? Tomorrow?

Same as yours.