JOHN H. LOWE, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed a trial court's judgment finding an attorney guilty of indirect criminal contempt for failing to appear at a scheduled trial. The court found the attorney's failure to appear, without evidence of forgetfulness, was sufficient to support the contempt conviction.
Yes, the attorney's failure to appear, coupled with the lack of evidence of forgetfulness, was sufficient to support the indirect criminal contempt conviction. No, the trial judge did not err in failing to disqualify himself.
[1] An attorney's failure to appear at a scheduled trial, when aware of the time and without evidence of forgetfulness, may support a finding of indirect criminal contempt.
[2] The mere failure of an attorney to timely appear before a trial judge does not, in itself, support a criminal contempt conviction.
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Join FLexlaw to unlock all legal intelligence“We cannot say that the record could not support the trial court’s apparent conclusion that appellant took it upon himself to decide that the judge could deal with other matters at that scheduled time and that therefore appellant need not timely appear.”
Establishes the court's view that the attorney's actions supported the contempt finding.
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Join FLexlaw to unlock all legal intelligenceThe appellant, an attorney, failed to appear at a scheduled nonjury trial. He conceded he was aware of the trial time and offered no evidence of forge…
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PER CURIAM.
We affirm the trial court’s judgment adjudicating appellant, an attorney, guilty of indirect criminal contempt for failure to appear at the scheduled time of a nonjury trial.
The appellant conceded at the contempt hearing that he was aware of the time of the scheduled trial, and he provided no evidence that his failure to appear resulted from forgetfulness.
We cannot say that the record could not support the trial court’s apparent conclusion that appellant took it upon himself to decide that the judge could deal with other matters at that scheduled time and that therefore appellant need not timely appear. Generally, the mere failure of an attorney to timely appear before a trial judge will not support a criminal contempt conviction. In this case, however, the evidence, in the form of appellant’s own testimony, does not appear to be insufficient to support the court’s conclusion that the attorney’s conduct “was calculated to embarrass, hinder and obstruct the court in the administration of justice and was calculated to lessen the court’s authority or dignity.” Also, the record does not show that the trial judge erred in failing to disqualify himself.
Rule 3.840(a)(5), Florida Rules of Criminal Procedure, provides for the disqualification of a trial judge from presiding over a contempt proceeding “[i]f the contempt charged involves disrespect to or criticism of” that judge. “A judge need not recuse himself simply because the contempt was committed against him or a court of which he is a member. Further, a judge generally is not disqualified merely because he initiated the contempt proceedings.” Bryant v. State, 363 So. 2d 1141, 1144 (Fla. 1st DCA 1978). Nothing in the record before us demonstrates that appellant’s obstruction of the court in the administration of justice, as found by the trial court here, constituted personal disrespect for a judge of that court as contemplated by rule 3.840(a)(5).
RYDER, C.J., LEHAN, J., and SAND-ERLIN, JAMES B., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Fredericks v. Sturgis, 598 So. 2d 94 (Fla. 5th DCA 1992)…direct (rather than direct) contempt. See also Fisher v. State, 248 So. 2d 479 (Fla.1971) (failure of attorney to appear for trial after being ordered to continue representation not properly characterized as direct criminal contempt); Lowe v. State, 468 So. 2d 258 (Fla. 2d DCA 1985) (attorney in indirect criminal contempt for failing to appear at non-jury trial). Since this was indirect contempt rather than direct contempt, summary disposition was not available. If the action taken by Fredericks was possible…
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Castro v. Honorable Richard A. Luce, 650 So. 2d 1067 (Fla. 2d DCA 1995)…jection does not render prohibition an improper writ to test this issue. On the merits, we initially observe that not all indirect contempt proceedings involve disrespect to or criticism of the judge who initiates the proceeding. See Lowe v. State, 468 So. 2d 258 (Fla. 2d DCA 1985). Judge Case voluntarily disqualified himself without any announced explanation. Judge Luce concluded that rule 3.840(e) applies if the initial judge is compelled to disqualify himself, but does not apply if that judge voluntarily…
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Martinez v. State, 799 So. 2d 313 (Fla. 2d DCA 2001)…. 2d 373 (Fla. 1st DCA 1999); Woods v. State, 600 So. 2d 27 (Fla. 4th DCA 1992); Porter v. Williams, 392 So. 2d 59 (Fla. 5th DCA 1981). We also recognize that in other cases failure to appear has been treated as indirect contempt. See Lowe v. State, 468 So. 2d 258 (Fla. 2d DCA 1985); Villate v. State, 663 So. 2d 672 (Fla. 4th DCA 1995); Fredericks v. Sturgis, 598 So. 2d 94 (Fla. 5th DCA 1992). [*315] In Aron v. Huttoe, 265 So. 2d 699 (Fla.1972), the supreme court approved the Third District’s holding that a f…
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- Bryant v. State, 363 So. 2d 1141 (Fla. 1st DCA 1978)