DAVID S. NUNES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Attorney David Nunes appeals his conviction for criminal contempt that was imposed summarily during trial while he was delivering closing arguments. The court reverses, holding that the trial judge failed to comply with procedural requirements for direct criminal contempt under Florida Rule of Criminal Procedure 3.830, specifically failing to adequately inform the attorney of the charges and denying his request for an evidentiary hearing.
The court reversed the contempt conviction, holding that the judge committed reversible error in two respects: (1) the court did not sufficiently advise the appellant of what he was being held in contempt for, as required by Rule 3.830, and (2) the court improperly denied the appellant's request for an evidentiary hearing when a true factual issue was presented.
[1] A defendant held in contempt for direct contempt of court must be afforded an opportunity to present evidence of mitigating circumstances before sentencing.
[2] A court must inform a defendant of the accusation of contempt and inquire as to any cause why they should not be adjudged guilty and sentenced.
Previewing 2 of 3 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“A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. 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 to show why he should not be adjudged guilty of contempt by the Court and sentenced therefor.”
Establishes the procedural requirements of Florida Rule of Criminal Procedure 3.830 for direct criminal contempt, including the duty to inform the defendant of accusations and give opportunity to respond.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceNunes, an attorney, was representing a client charged with burglary and attempted sexual battery. During closing argument to the jury, Nunes stated th…
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BERANEK, Judge.
The defendant appeals a judgment finding him guilty of contempt. We reverse.
The defendant is an attorney who represented an individual who was charged and tried for burglary and attempted sexual battery. Near the closing of his final summation to the jury, the judge excused the jury, found the attorney guilty of contempt, and then proceeded with the trial.
Florida Rule of Criminal Procedure 3.830 governs direct criminal contempt. It states:
Rule 3.830. Direct Criminal Contempt
A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. 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 to show why he should not be adjudged guilty of contempt by the Court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.
We hold that the judge committed reversible error in two respects. First, the court did not sufficiently advise appellant as to what he was being held in contempt for, as directed by Florida Rule of Criminal Procedure 3.830. Further, the court denied appellant’s request for an evidentiary hearing on the matter. Direct criminal contempt may be dealt with summarily but when a true factual issue is presented it should be determined based upon the readi ly available evidence when there is a request by the defendant to present evidence. Here, counsel mentioned in argument to the jury that a particular witness had pointed at a juror during her testimony. The trial court stated that the witness had not pointed and found counsel in contempt, due in part to his “misquoting of the evidence.” During the contempt hearing, counsel requested a chance to offer evidence on the issue which was summarily denied.
This does not constitute a ruling on whether appellant’s conduct was contemptuous. The matter is remanded for further proceedings in which appellant should be informed of the accusations against him and given an opportunity to present evidence as to why he should not be found guilty of contempt.
REVERSED AND REMANDED.
DOWNEY and HERSEY, JJ., concur.
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Davis v. State, 575 So. 2d 288 (Fla. 3d DCA 1991)…y of direct criminal contempt and pronounced sentence, over defense counsel’s objection that defendant was entitled to a hearing. This did not constitute sufficient notice and opportunity to present evidence. Fla.R.Crim.P. 3.830; see Nunes v. State, 434 So. 2d 366 (Fla. 4th DCA 1983). Reversed and remanded.…
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Hemesath v. State, 732 So. 2d 496 (Fla. 1st DCA 1999)…t may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court.”), the trial court utilized the procedures under Florida Rule of Criminal Procedure 3.840. See Nunes v. State, 434 So. 2d 366, 366-67 (Fla. 4th DCA 1983) (“Direct criminal contempt may be dealt with summarily but when a true factual issue is presented it should-be determined based upon the readily available evidence when there is a request by the defendant to present evide…