DAVID M. PORTER, APPELLANT,
v.
VOLIE A. WILLIAMS, JR., APPELLEE
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A Public Defender was held in contempt of court for failing to personally appear at a sentencing hearing, but the appellate court reversed because the trial judge failed to follow the procedural requirements for adjudicating contempt under Florida Rules of Criminal Procedure.
The court reversed the contempt adjudication because the trial judge failed to follow the procedural requirements of Florida Rules of Criminal Procedure Rule 3.830, which requires the judge to inform the defendant of the accusation, inquire whether there is cause why he should not be adjudged guilty, and give the defendant an opportunity to present evidence of excusing or mitigating circumstances.
[1] A defendant accused of direct criminal contempt must be informed of the accusation and given an opportunity to present evidence of excusing or mitigating circumstances be…
[2] A court cannot summarily punish a defendant for direct criminal contempt when the alleged contemptuous conduct occurred days prior to the adjudication.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. The rule also provides that prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause why he should not be adjudged guilty. The defendant also is to be given the opportunity to present evidence of excusing or mitigating circumstances.”
Establishes the mandatory procedural requirements for contempt adjudication under Rule 3.830
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Join FLexlaw to unlock all legal intelligenceThe Public Defender was appointed to defend Willie Evans in an armed robbery case and delegated the case to an assistant. The trial judge sent a lette…
The full statement of facts, procedural history, and disposition for this case are member content.
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FRANK D. UPCHURCH, Jr., Judge.
Appellant, the Public Defender of the Eighteenth Judicial Circuit, appeals from an order holding him in contempt of court for his failure to personally appear at a sentencing hearing.
The Public Defender had been appointed to defend Willie Evans who had been charged with armed robbery. Responsibility for the case was assigned to an assistant public defender. On March 7, 1980, the judge addressed a letter to appellant advising him that he was expected to be present on April 3 at Evans’ sentencing. The Public Defender’s office forwarded the letter to the assistant, but unknown to appellant, the assistant was outside the circuit at the time of the hearing on April 3.
When appellant failed to appear at the hearing, Judge Williams had a bailiff inquire as to his whereabouts. Another assistant arrived at the courtroom and the court proceeded with the sentencing. Judge Williams found appellant in contempt and fined him $100.00 for his failure to appear. Following this adjudication, appellant appeared and was told by Judge Williams to ask the court reporter what transpired. No opportunity was afforded to appellant to explain the reasons for his absence.
Was appellant properly adjudged in contempt of court? We think not and reverse.
Contempt is defined in rule 3.830, Florida Rules of Criminal Procedure, which provides that the judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. The rule also provides that prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause why he should not be adjudged guilty. The defendant also is to be given the opportunity to present evidence of excusing or mitigating circumstances.
For an indirect criminal contempt, rule 3.840, Florida Rules of Criminal Procedure, an order to show cause is to be issued giving the time and place of a hearing, the essential facts constituting the contempt and requiring defendant to appear and show cause why he should not be held in contempt of court. Indirect criminal contempt occurs where the act constituting the contempt is committed out of the presence of the court. Pugliese v. Pugliese, 347 So. 2d 422 (Fla.1977). Where the act is committed in the immediate presence of the court, the proceeding to punish is for direct criminal contempt. Id.
Non-appearance pursuant to an order of the court is normally considered a direct criminal contempt since it is committed in the immediate view and presence of the court. See, e. g., Sandstrom v. State, 390 So. 2d 448 (Fla. 4th DCA 1980). Therefore, summary punishment is proper, but the court failed to follow the procedures defined in rule 3.830.
We therefore reverse and remand to the trial court for further proceedings consistent with the requirements of rule 3.830.
REVERSED and REMANDED.
COBB and COWART, JJ., concur.
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Citator
Cited By (12 total)
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State v. DE LA Portilla, 177 So. 3d 965 (Fla. 2015)…EAS the Court has complied with Rule 3.830 in this finding and process, and failure to appear can be Direct Criminal Contempt Bouie v. State, 784 So. 2d 521 (Fla. 4th DCA 2001); Speer v. State, 742 So. 2d 373 (Fla. 1st DCA 1999); Porter v. Williams, 392 So. 2d 59 (Fla. 5th DCA 1981); NOW, THEREFORE, in consideration thereof, it is ORDERED AND ADJUDGED that Respondent/Husband, ALEX DIAZ DE LA PORTILLA, is guilty of Direct Criminal Contempt of this Court for his failure to appear at [the] hearing herein on t…
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Speer v. State, 742 So. 2d 373 (Fla. 1st DCA 1999)…ad been subpoenaed by each party.... We believe the record establishes the trial court saw and heard a contempt committed in its actual presence and that this was a direct criminal contempt.”), adopted, 265 So. 2d 699 (Fla.1972); Porter v. Williams, 392 So. 2d 59, 60 (Fla. 5th DCA 1981) (“Non-appearance pursuant to an order of the court is normally considered a direct criminal contempt since it is committed in the immediate view and presence of the court.”); Sandstrom v. State, 390 So. 2d 448, 449 (Fla. 4th…
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State ex rel. Franklin C. Coody v. The Honorable Bernard C. Muszynski, 404 So. 2d 165 (Fla. 5th DCA 1981)…ed a direct criminal contempt.2 Even if there had been a direct criminal contempt, petitioner was not afforded the procedural guaranties of rule 3.830. See State ex rel. Garlovsky v. Eastmoore, 393 So. 2d 567 (Fla. 5th DCA 1981); Porter v. Williams, 392 So. 2d 59 (Fla. 5th DCA 1981). In the case before us, the trial judge had two alternatives available to him in the disposition of the petition: 1) he could issue an order to arrest the defendant and to commit him for a designated period or until he purged him…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rocco Pugliese v. Pugliese, 347 So. 2d 422 (Fla. 1977)
- Sandstrom v. State, 390 So. 2d 448 (Fla. 4th DCA 1980)