Opinion
No. 76-665.
August 4, 1976.
Robert E. Jagger, Public Defender, and James G. Gagnon, Asst. Public Defender, Clearwater, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
The Circuit Court of the Sixth Judicial Circuit has certified to this court for our consideration the following question:
IS DISMISSAL WITH PREJUDICE MANDATORY OR DISCRETIONARY WHEN A PETITION ALLEGING DELINQUENCY IS NOT FILED WITHIN 30 DAYS FROM THE DATE THE COMPLAINT WAS RECEIVED BY THE INTAKE OFFICE OR INTAKE OFFICER OF DIVISION OF YOUTH SERVICES?
Florida Statute § 39.05(7) (1975) states:
"On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 30 days from the date the complaint was referred to the intake office." (emphasis added)
Whereas, Florida Rules of Juvenile Procedure provide in Rule 8.020(b)(5):
"On motions by or in behalf of a child, a petition alleging delinquency or need of supervision may be dismissed with prejudice if it was not filed within thirty days from the date the complaint was received by the Intake Officer." (emphasis added)
It has often been held that when the word "shall" is used by the legislature it can be directory rather than mandatory. In Fagan v. Robbins, 1928, 96 Fla. 91, 117 So. 863, at page 866, our supreme court approved the following pronunciation by the Supreme Court of Pennsylvania in Becker v. Lebanon, etc., 188 Pa. 484, 41 A. 612:
"`The word "shall" when used by the Legislature to prescribe the action of a court is usually a grant of authority, and means "may," and even if it be intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the exercise of the power.'"
See also Simmons v. State, 1948, 160 Fla. 626, 36 So.2d 207, and State ex rel. Harrington v. Genung, Fla.App.2d 1974, 300 So.2d 271.
The statute quoted above in which the word "shall" is used prescribes the action of a court and therefore is a grant of authority and means "may." The Florida Constitution, Article V, § 2, provides that the "supreme court shall adopt rules for the practice and procedure in all courts. . ." The statute is procedural rather than substantive and, therefore, is subject to the exclusive rule-making power of our supreme court. See State v. Garcia, Fla. 1969, 229 So.2d 236.
In answer to the certified question: Dismissal with prejudice is discretionary when a petition alleging delinquency is not filed within 30 days from the date the complaint was received by the intake office or intake officer of the Division of Youth Services.
McNULTY, C.J., and BOARDMAN, J., concur.