EDWARD A. VICK, PETITIONER,
v.
NICK NAVARRO, SHERIFF OF BROWARD COUNTY, FLORIDA, RESPONDENT
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In this habeas corpus petition, the Florida Fourth District Court of Appeal held that a trial court's contempt order violated due process protections because it simultaneously invoked both civil and criminal contempt findings without affording the defendant the constitutional protections required for criminal prosecution, and lacked evidence of present ability to pay the purge amount.
The court held that the contempt order must be vacated because: (1) checking both civil and criminal contempt boxes required affording the petitioner constitutional protections required in criminal prosecutions, which the record did not show were provided; and (2) the findings of fact supported only past ability that had been divested, not present ability to pay, and therefore could not support a civil contempt order under Bowen v. Bowen.
[1] A finding of indirect criminal contempt requires that the defendant be afforded the same due process protections as in typical criminal proceedings.
[2] A court order containing language for both civil and indirect criminal contempt, but failing to provide the procedural protections for criminal contempt, may be invalid.
Previewing 2 of 4 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 first phrase is a finding of civil contempt, but the second sentence is a finding of indirect criminal contempt. Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985). If faced with criminal contempt, a defendant is entitled to the same due process protections as are afforded defendants in more typical criminal proceedings.”
Establishes that checking the second box invokes criminal contempt protections that must be afforded to the defendant
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePetitioner Edward Vick was held in contempt of court for failure to comply with a support order. The trial court used a form order with two checkboxes…
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PER CURIAM.
We grant the habeas petition on the authority of Moskowitz v. Moskowitz, 549 So. 2d 781 (Fla. 4th DCA 1989), which is directly on point. In this case, as in Mos-kowitz, the form order used by the court had two boxes to check. The order states that “( ) the Respondent has the ability to comply with previous order(s) of this court and refuses to do so or ( ) had the ability to comply with but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of said order.” The first phrase is a finding of civil contempt, but the second sentence is a finding of indirect criminal contempt. Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985).
If faced with criminal contempt, a defendant is entitled to the same due process protections as are afforded defendants in more typical criminal proceedings. Bowen at 1277. Here, the judge checked both boxes, but the record does not reveal that the petitioner was afforded the constitutional protections required for a criminal prosecution. In addition, the record does not show substantial competent evidence that the petitioner had the present ability to pay the nearly $8,500 purge amount. The order adjudicating contempt states “arrears have increased since last hearing. Nothing paid since 7/88. Self-employed for a while 1988 and put $6,000 in business.” Thus, the findings of fact do not relate to present ability but a possible past ability which has now been divested and cannot support an order of civil contempt under Bowen.
We direct that the petitioner be released from custody forthwith. This is without prejudice to further contempt proceedings brought by the Support Enforcement Division or Joy Vick in accordance with the appropriate rules of civil or criminal procedure.
GUNTHER, WARNER and GARRETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)
- Moskowitz v. Moskowitz, 549 So. 2d 781 (Fla. 4th DCA 1989)
- Norwich v. Norwich, 549 So. 2d 781 (Fla. 4th DCA 1989)