
    STATE v. FALCON.
    No. S636-785.
    County Court, Dade County.
    March 28, 1979.
    Antonia Barnes, Assistant State Attorney, for the state.
    Nicholas J. Capuano, Miami, for the defendant.
   STEVEN D. ROBINSON, County Court Judge.

This cause came before the court on oral pre-trial motion, hearing of which was stipulated by the parties, that the order of license revocation, suspension or cancellation sought to be introduced should be excluded on the grounds that the notice sent to the defendant in this case was defective in that it did not include the affidavit required by F.S.322.251 (2) (1978). That statute states—

“The giving of notice and order of cancellation, suspension, or revocation by mail is complete upon expiration of 20 days after deposit in the United States mail. Proof of the giving of notice and order of cancellation, suspension or revocation in either such manner shall be made by affidavit of the employee of the department who causes the notice and order to be given. The affidavit shall be sworn to by the employee upon the issuance of such notice and order and shall name the person to whom such notice and order was given and specify the time, place, and manner of the giving thereof.”

Notice to persons whose licenses are being cancelled, suspended or revoked is now required by the 1978 amended Florida Statute 322.251, which states that all orders of cancellation, suspension or revocation issued under the provisions of Chapter 322 shall be given by personal delivery or by mailing a certified letter, postage prepaid, to the defendant’s last known address.

Before October 1, 1978, notice was not required for habitual offenders. Compare 322.251 (1977) which only required notice if otherwise required in Chapter 322. Proof of the sending of this notice must be made by introducing an affidavit of the employee of the Department of Highway Safety and Motor Vehicles who caused the order and notice to be given. In addition this affidavit must have been sworn to by the employee upon the issuance of such notice. F.S. 322.251 (1978).

In the copy of the notice, certified by the custodian of the records of the Division of Driver Licenses, there is no affidavit of the employee of the Department of Highway Safety, particularly specified in the statute, either appended to or executed on the original notice. This court cannot assume that the custodian of the records is the required employee. In addition, the certification does not say whether or not the notice was in fact mailed. All that exists is a certified mail identification number (#1801443), which can be obtained by a user of the mails without actually posting the mail.

It is ordered and adjudged that the oral motion to exclude the notice sought to be admitted without the required affidavit, is granted.  