NEWS-PRESS PUBLISHING CO., INC., D/B/A FORT MYERS NEWS-PRESS, PETITIONER,
v.
HONORABLE HUGH D. HAYES, JUDGE OF THE CIRCUIT COURT IN THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA, RESPONDENT
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The Florida District Court of Appeal granted a petition for writ of certiorari and quashed a trial court order restricting extrajudicial statements by parties, counsel, and witnesses in a criminal case. The court held that while trial judges have discretion to impose such restrictions to ensure fair trials, the order was invalid because it was entered without a proper evidentiary hearing.
The court granted the petition and quashed the order because it was entered sua sponte without a proper evidentiary hearing. Although courts have discretion to restrict extrajudicial statements to assure fair trials when applied to areas where a clear and present danger of miscarriage of justice might arise, any such order must be based on an adequate record to permit effective appellate review.
[1] A court order restricting extrajudicial statements by parties, counsel, and witnesses in a pending case must be based upon an evidentiary hearing to allow for effective a…
[2] A court has discretion to enter orders restricting extrajudicial statements to assure fair trials when there is a clear and present danger of a miscarriage of justice.
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Join FLexlaw to unlock all legal intelligence“A court has discretion to enter an order of that kind to "assure fair trials" when it applies to "comments to those areas in which clear and present danger of miscarriage of justice might arise"”
Establishes the legal standard for when trial courts may restrict extrajudicial statements
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Join FLexlaw to unlock all legal intelligenceIn State v. Benson, a criminal case pending in circuit court, Judge Hayes entered an order restricting extrajudicial statements by all parties, counse…
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PER CURIAM.
News-Press Publishing Company has filed a petition for writ of certiorari from an order by respondent Judge Hugh D. Hayes restricting extrajudicial statements concerning the pending case of State v. Benson, Cir.Ct. No. 85-0778-CF-A-HDH. The order provides:
1. That all parties, counsel, witnesses and prospective witnesses shall not make or participate in making any extrajudicial statement, written or oral, concerning this case, other than a quotation from or reference to, without comment, the public records of the Court in this case. This Order specifically prohibits any statement which a reasonable person would expect to be disseminated by means of public communication and relates to:
A. Evidence regarding the occurrences or transactions involved in this case;
B. The identity or testimony of a witness or prospective witness;
C. The character, credibility, arrest or criminal record of a party, witness or prospective witness;
D. The existence or contents of any confession, admission, or statement given by a defendant, or the refusal or failure of a defendant to make any statement; the possibility of a plea of guilty to the offense charged or a less offense; or any opinion as to the defendants’ guilt or innocence.
2. No person covered by this Order shall avoid its proscriptions by actions that indirectly, but deliberately, cause a violation of this Order. 3. Further, the names and addresses of prospective jurors are not to be released except on order of the Court.
4. The provisions of this Order shall remain in effect throughout these proceedings, until such time as a verdict has been returned, unless modified by this Court. Counsel for the parties are responsible for the communication of the terms of this Order to all parties, witnesses and prospective witnesses.
The order was based upon the court’s conclusions that
after an extensive review of the court file, that there is a substantial likelihood that a fair trial by an impartial jury may not result unless appropriate steps are taken concerning extrajudicial statements by parties, counsel, witnesses and prospective witnesses which are likely to interfere with the rights of the accused and the State. The publicity of this case by the newspapers and the broadcast media is quite extensive. . Information contained in the media reports is unrestrained and often of such a prejudicial nature that it would be declared inadmissible evidence at trial. Selection of an impartial jury becomes more difficult when statements of trial participants are widely published and such statements can pose a serious and imminent threat of interference with the parties’ rights to a fair trial.
We grant the petition and quash the order which was entered sua sponte without a proper hearing. See Times Publishing Co. v. Penick, 433 So. 2d 1281, 1285 (Fla. 2d DCA 1983). On petitioner’s motion to vacate the order, petitioner’s argument was heard after which the order was clarified to show that it did not restrict access to public records. But there had been no evidentiary hearing.
We do not conclude that the court necessarily had no grounds upon which to enter the order. A court has discretion to enter an order of that kind to “assure fair trials” when it applies to “comments to those areas in which clear and present danger of miscarriage of justice might arise _” State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So. 2d 904, 910-11 (Fla.1977). But the order was not based upon a record from which there could be effective appellate review.
On remand the court should conduct an evidentiary hearing. Cf. Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1, 7 (Fla.1982).
GRIMES, A.C.J., and SCHEB and LE-HAN, JJ., concur.
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E.I. DU Pont de Nemours & Co. v. Aquamar, S.A., 33 So. 3d 839 (Fla. 4th DCA 2010)…(Fla. 3d DCA 1999). Thus, a gag order should be supported by evidence and findings that any extrajudicial statements made by counsel or the parties pose a substantial or imminent threat to a fair trial. Id.; see also News-Press Publ’g Co. v. Hayes, 493 So. 2d 1, 2 (Fla. 2d DCA 1986) (quashing order restricting extrajudicial statements because it. was entered sua sponte without a proper evidentiary hearing). As in Rodriguez, the order on review was not supported by any showing that it was necessary to precl…
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Dalia Dippolito v. State, 225 So. 3d 233 (Fla. 4th DCA 2017)…the media were much more frequent and substantial. 5. Our Standard of Review Appellate courts review orders prohibiting counsel from making extrajudicial statements by certiorari. Rodriguez, 734 So. 2d at 1163; News-Press Pub. Co., Inc. v. Hayes, 493 So. 2d 1, 1-2 (Fla. 2d DCA 1986). Alternatively, such orders may be reviewed by non-final appeal because they are .“in the nature of an injunction.” Rodriguez, 734 So. 2d at 1163 n.1 (citing Fla. R. App. P. 9.130(a)(3)(B)); see also Aguamar, 33 So. 3d at 841…
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Sarasota Herald-Tribune Co., Inc. v. The Honorable Walter R. Talley, 523 So. 2d 1163 (Fla. 2d DCA 1988)…ee County. While it appears that the trial court departed from the essential requirements of law in issuing the order without prior notice and opportunity to be heard by at least one member of the media, see News-Press Publishing Co., Inc. v. Hayes, 493 So. 2d 1 (Fla. 2d DCA 1986); Times Publishing Co. v. Penick, 433 So. 2d 1281 (Fla. 2d DCA 1983); Times Publishing Co. v. Hall, 357 So. 2d 736 (Fla. 2d DCA 1978), we deny the petition because the issue has become moot in that Nowitzke was convicted of the cha…
Authorities Cited
- State of Fla. ex rel. Miami Herald Publ'g Co. v. McINTOSH, 340 So. 2d 904 (Fla. 1976)
- The Miami Herald Publ'g Co. v. Royce R. Lewis, 426 So. 2d 1 (Fla. 1982)
- Times Publ'g Co. v. Penick, 433 So. 2d 1281 (Fla. 2d DCA 1983)