BOBBY FISHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bobby Fisher appealed his direct criminal contempt conviction for refusing to submit handwriting samples in a forgery prosecution. The Florida appellate court reversed, holding that the trial court failed to comply with mandatory procedural requirements under Rule 3.830, Fla.R.Crim.P., particularly the requirement to enter a written, signed judgment of record.
No. The appellate court reversed Fisher's contempt conviction because the trial court failed to comply with mandatory procedural requirements, specifically the requirement to enter a written and signed judgment of record. Even though the contemptuous conduct occurred in the actual presence of the court, the procedural defects violated due process requirements.
[1] Direct criminal contempt requires strict adherence to mandatory procedural steps outlined in Rule 3.830, Fla.R.Crim.P., to ensure due process.
[2] A trial court must inform a defendant of the accusation of direct criminal contempt and inquire as to any cause for not being adjudged guilty prior to 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“It is necessary that the procedure set out in this rule be followed in order to insure due process to the accused and failure to do so must result in reversal.”
Establishes that strict compliance with Rule 3.830 procedural requirements is mandatory and that non-compliance requires reversal.
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Join FLexlaw to unlock all legal intelligenceFisher was prosecuted for uttering a forged instrument and refused to voluntarily submit handwriting samples. The trial court granted the State's moti…
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MeCORD, GUYTE P., Jr. (Ret.), Associate Judge.
Fisher appeals his conviction for direct criminal contempt, contending that he was not properly convicted under Rule 3.830, Fla.R.Crim.P. We agree and reverse.
Fisher was prosecuted for uttering a forged instrument. He refused to voluntarily submit any handwriting samples for the State to examine. Accordingly, the State filed a motion for handwriting specimens, which the trial court granted in a written order dated 28 January 1985.
On that same date, Fisher’s case came before the trial court on a preliminary hearing. Through counsel, Fisher objected to the exemplars being requested so close to the commencement of trial because it did not allow him time to secure his own handwriting expert. At this point, the trial judge offered to render an order directing expedited analysis by a handwriting expert which would be appointed by the court. Fisher, through counsel, affirmed his refusal to provide the requested samples even under these circumstances. The following exchange then took place:
THE COURT: Well, I will require that be done. If he refuses to give them, we will face that with logical consequences. MR. MURRELL: Well, I think we are at that point now. •
THE COURT: Well, in that event, I will instruct him that is what he is to do. Failure to do so will call for extra sanctions, regardless of the outcome of the case. You may wish to confer with your client. If you wish to do that privately—
MR. MURRELL: Well, I think I can do it right here. (Whereupon, defense counsel conferred with the Defendant.)
MR. MURRELL: Mr. Fisher still does not wish to submit any handwriting samples.
THE COURT: All right. The Court is ordering him to do so. He has refused to do so. I will hold him in direct criminal contempt of this Court. Five months, twenty-five days in Leon County Jail. Direct criminal contempt is covered by rule 3.830, Fla.R.Crim.P., which sets out the following mandatory procedural steps:
1. Direct 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.
2. The judgment of guilt shall include a recital of those facts upon which the adjudication of guilt is based.
3. 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. 4. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances.
5. The judgment shall be signed by the judge and entered of record.
6. The sentence shall be pronounced in open court.
It is necessary that the procedure set out in this rule be followed in order to insure due process to the accused and failure to do so must result in reversal. Ledlow v. State, 346 So. 2d 609 (Fla. 1st DCA 1977); Garber v. State, 335 So. 2d 609 (Fla. 2d DCA 1976); Holden v. State, 380 So. 2d 548 (Fla. 2d DCA 1980). Even technical errors, such as a failure to recite in the judgment those facts upon which the adjudication of guilt was based, require a reversal. Osborne v. State, 430 So. 2d 551 (Fla. 2d DCA 1983).
In the present case, a required written and signed order was not entered of record. In its brief, the State relies heavily upon the case of Saunders v. State, 319 So. 2d 118 (Fla. 1st DCA 1975), in which this court upheld an adjudication of contempt when no written judgment was entered, because the transcript of the proceedings spoke for itself. However, the record in Fisher’s case falls considerably short of that present in Saunders and therefore the broad language of that opinion cannot be applied to the instant case.
The judgment appealed is REVERSED.
ERVIN and WIGGINTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Woods v. State, 600 So. 2d 27 (Fla. 4th DCA 1992)…ecital of the facts constituting the contempt, which while a technical error, requires a reversal and remand for the correction of the judgment. Wells v. State, 487 So. 2d 1101 (Fla. 5th DCA), cause dismissed, 491 So. 2d 281 (1986); Fisher v. State, 482 So. 2d 587 (Fla. 1st DCA 1986). The conviction and sentence for grand theft is reversed and remanded for further proceedings consistent with this opinion. The conviction and sentence for contempt is reversed and remanded for compliance with Rule 3.830. HERSE…
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O'Neal v. State, 501 So. 2d 98 (Fla. 1st DCA 1987)…ed on O’Neal. The trial court judge failed to adhere to the procedures set out in Rule 3.830, Florida Rules of Criminal Procedure, which this court has acknowledged must “be followed in order to insure due process to the ac-cused_” Fisher v. State, 482 So. 2d 587, 588 (Fla. 1st DCA 1986). In Fisher, we determined that Rule 3.830 requires the trial court to follow essentially six steps pursuant to an adjudication of contempt: 1. Direct criminal contempt may be punished summarily if the court saw or heard the…
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J.A.H. v. State of Fla. & Dep't of Child. & Families, 20 So. 3d 425 (Fla. 1st DCA 2009)…4. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. 5. The judgment shall be signed by the judge and entered of record. 6. The sentence shall be pronounced in open court. Fisher v. State, 482 So. 2d 587, 588 (Fla. 1st DCA 1986). In the instant case, the trial court failed to follow steps two, three and four. Scrupulous compliance with the requirements of rule 3.830 is mandatory because its provisions constitute the essence of due process. See Peter…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Penson v. State, 319 So. 2d 118 (Fla. 3d DCA 1975)
- Saunders v. State, 319 So. 2d 118 (Fla. 1st DCA 1975)
- Osborne v. State, 430 So. 2d 551 (Fla. 2d DCA 1983)
- Ledlow v. State, 346 So. 2d 609 (Fla. 1st DCA 1977)
- Cordero v. State, 380 So. 2d 548 (Fla. 2d DCA 1980)
- Holden v. State, 380 So. 2d 548 (Fla. 2d DCA 1980)
- Garber v. State, 335 So. 2d 609 (Fla. 2d DCA 1976)