LEONARD P. CONTELLA, APPELLANT,
v.
ALICE ST. ONGE CONTELLA, APPELLEE
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Leonard Contella appeals from an order altering the date of his contempt commitment. The Florida appellate court affirms the commitment order, rejecting Contella's due process challenges and holding that the contempt proceeding was for indirect criminal contempt not requiring purge provisions or a Cokonougher hearing.
The court affirmed the commitment order, holding that: (1) the contempt proceeding was for indirect criminal contempt; (2) the merits of the original contempt order could not be revisited on appeal; (3) no purge provisions or Cokonougher hearing was required; and (4) the only procedural departure from Florida Rule of Criminal Procedure 3.840 was failure to pronounce sentence in open court with the defendant present.
[1] A prior appellate decision upholding a contempt order and commitment order is res judicata as to issues that were or could have been raised in that appeal.
[2] A party cannot revisit the merits of a contempt order that was not timely challenged by appeal.
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Join FLexlaw to unlock all legal intelligence“the contempt proceeding against Contella was primarily one for indirect criminal contempt”
Establishes the classification of the contempt that determines which procedural requirements apply
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Join FLexlaw to unlock all legal intelligenceLeonard Contella was found in contempt of court by order dated July 21, 1989. The trial judge subsequently altered the commitment date from August 8, …
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W. SHARP, Judge.
Leonard Contella appeals from the October 15, 1990 order entered by the trial judge, which altered the date of his commitment for contempt of court from August 8, 1989 to October 26, 1990. This court previously dealt with this cause in a habeas corpus proceeding1 in which we denied relief, and upheld the underlying contempt order (July 21, 1989) as well as the commitment order sought to be appealed against various due process challenges. We affirm the order now appealed to us.
This has been a long and bitterly contested matter. But we are not free to decide again the same due process challenges, and others, which Contella raised in the habeas corpus case, or which he could have raised had he timely appealed the underlying contempt order entered on July 21, 1989. Based on that case history, we conclude that:
1) the contempt proceeding against Con-tella was primarily one for indirect criminal contempt;
2) the basis for the indirect criminal contempt was not timely challenged by appeal and we cannot now revisit the merits of the July 21, 1989 order;
3) since this proceeding was one for indirect criminal contempt, no purge provisions were required, and no Cokonougher2 hearing was or is now required;
4)Contella has failed to demonstrate by the record before us that there has been any essential departure from Florida Rule of Criminal Procedure 3.840 which deals with indirect criminal contempt, other than failing to sentence him pursuant to subsection (7) of the rule which states:
The Sentence; Indirect Contempt. Prior to the pronouncement of sentence, the judge shall inform the defendant of the accusation and judgment against him and inquire as to whether he has any cause to show why sentence should not be pronounced. The defendant shall be afforded the opportunity to present evidence of mitigating circumstances. The sentence shall be pronounced in open court and in the presence of the defendant.
Accordingly, we affirm the amended order of commitment for contempt appealed in this cause and remand to the trial court for further proceedings consistent with this opinion.
AFFIRMED and REMANDED.
GOSHORN, C.J., concurs.
DAUKSCH, J., dissents without opinion.
. Contella v. Contella, 557 So. 2d 880 (Fla. 5th DCA 1990).
. Cokonougher v. Cokonougher, 543 So. 2d 460 (Fla. 2d DCA 1989).
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Authorities Cited
- Cokonougher v. Cokonougher, 543 So. 2d 460 (Fla. 2d DCA 1989)
- Molina v. State, 557 So. 2d 880 (Fla. 3d DCA 1989)
- AL Hutchinson Entp., Inc. v. Am. Bankers INS. Grp., 557 So. 2d 880 (Fla. 3d DCA 1990)