BARBARA REINS, APPELLANT,
v.
DON J. JOHNSON, ALBINAS SMULKSTYS, BURT TRAVERS AND BARBARA M. TRAVERS, APPELLEES
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The court held that contempt proceedings must satisfy Florida Rule of Criminal Procedure 3.840, including initiation by an order to show cause and recitation of facts constituting contempt.
Barbara Reins was found guilty of indirect criminal contempt during litigation over a boat dock. The contempt proceedings were initiated by an unsworn…
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PER CURIAM.
Barbara Reins appeals an order of the circuit court which adjudicates her guilty of indirect criminal contempt.
Mrs. Reins’s allegedly contemptuous conduct occurred during the course of prolonged and acrimonious litigation over the right to use a boat dock. The specific facts — claims of harassment and continuing denial of access to the dock — are not essential to the decision we reach in this appeal. We agree with Reins that the contempt proceedings failed to satisfy the requirements of Florida Rule of Criminal Procedure 3.840. The proceedings were commenced, not upon an order to show cause as required by subsection (1) of the rule, but only upon the unsworn motion of the plaintiffs in the underlying civil action.
Although there appears to have been no objection below, noncompliance with rule 3.840 constitutes fundamental error. Brown v. State, 595 So. 2d 259 (Fla. 2d DCA 1992); Bray v. Rimes, 574 So. 2d 1114 (Fla. 2d DCA 1990). Only an express waiver will suffice to estop the aggrieved party from challenging the adjudication on appeal. Persoff v. Persoff, 589 So. 2d 1007 (Fla. 4th DCA 1991). Mrs. Reins made no such waiver. The order under review is also deficient in that it fails to recite the “facts constituting the contempt of which the defendant has been found and adjudicated guilty.” Fla.R.Crim.P. 3.840(a)(6).
Reversed.
LEHAN, C.J., and RYDER and DANAHY, JJ., concur.
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Cited By (11 total)
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Baker v. Green, 732 So. 2d 6 (Fla. 4th DCA 1999)…ntempt order arising out of that proceeding may not stand. See Fay v. State, 608 So. 2d 589, 589 (Fla. 4th DCA 1992); Hunt v. State, 659 So. 2d 363, 364 (Fla. 1st DCA 1995); Judkins v. Ross, 658 So. 2d 658, 659 (Fla. 1st DCA 1995); Reins v. Johnson, 604 So. 2d 911, 911 (Fla. 2d DCA 1992); Starchk v. Wittenberg, 411 So. 2d 1000, 1001 (Fla. 5th DCA 1982). This was not a case where the contemnor “affirmatively represented to the trial court that she waived” an irregularity in the contempt procedure. Cf. Persoff…
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Giles v. Renew, 639 So. 2d 701 (Fla. 2d DCA 1994)…acts in the order. Brown v. State, 595 So. 2d 259 (Fla. 2d DCA 1992). The order in this case failed to incorporate the facts alleged in the amended petition.3 Fail [*703] ure to comply with Rule 3.840 constitutes fundamental error. Reins v. Johnson, 604 So. 2d 911 (Fla. 2d DCA 1992). Accordingly, we reverse the trial court’s order for the court’s failure to comply with all procedural aspects of the criminal justice process required by the rule governing indirect criminal contempt. Reversed and remanded. BLU…
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Charlotte Cnty. v. Richard Vetter for the Charlotte Cnty. Park of Commerce, LLC, 863 So. 2d 465 (Fla. 2d DCA 2004)…A preliminary injunction is improperly entered when it bypasses the procedures for a permanent injunction and preliminarily grants the same relief that would have been given in a final order of permanent injunction. Lee County Elec. Co-op. v. Cook, 604 So. 2d 911, 913 (Fla. 2d DCA 1992). We agree with the county that the purchase of land does not create a right to rely on the existing zoning. See Town of Largo v. Imperial Homes Corp., 309 So. 2d 571, 573 (Fla. 2d DCA 1975). However, the fact that Vetter and…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bray v. Rimes, 574 So. 2d 1114 (Fla. 2d DCA 1990)
- Brown v. State, 595 So. 2d 259 (Fla. 2d DCA 1992)
- Persoff v. Myron M. Persoff, 589 So. 2d 1007 (Fla. 4th DCA 1991)