JAMES M. RUSS AND LINROY BOTTOSON, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed criminal contempt conviction where trial court failed to provide reasonable time for defense preparation and denied continuance request in violation of Rule 3.840, Florida Rules of Criminal Procedure.
A contempt hearing held less than two days after service of the order to show cause violates Rule 3.840(a)(1) and due process by failing to allow reasonable time for defense preparation.
[1] Rule 3.840(a)(1) requires that a reasonable time be allowed for preparation of a defense after service of an order to show cause in a criminal contempt proceeding, and no…
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Join FLexlaw to unlock all legal intelligenceJames Russ, an attorney, was found guilty of indirect criminal contempt for failing to relinquish a file to the State Attorney in violation of a court…
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PER CURIAM.
James Russ, Esquire appeals from the order finding him guilty of indirect criminal contempt for his failure to relinquish a file in his possession to the State Attorney in contravention of a prior court order. Russ argues, correctly, that the trial court’s failure to follow the dictates of Rule 3.840, Florida Rules of Criminal Procedure, requires reversal.1
Rule 3.840(a)(1) mandates that “a reasonable time [be] allowed for preparation of the defense after service of the order on the defendant.” Here, the contempt hearing was held less than two days after service of the order to show cause. Due process requires more. See Goral v. State, 553 So. 2d 1282 (Fla. 3d DCA 1989) (holding that notice of only two working days was not a reasonable time for preparation of a defense). Further, Russ’s motion for a continuance on the ground that his attorney could not be there because of the short notice was erroneously denied. Russ was entitled to be represented by counsel. See Fla.R.Crim.P. 3.840(a)(4). Accordingly, we reverse the judgment and sentence under review.
REVERSED and REMANDED.
GOSHORN, PETERSON and THOMPSON, JJ„ concur. . Because our ruling on this issue is dispositive of the case, we do not address the other issues raised on appeal.
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Citator
Cited By (11 total)
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Telisia Shaonte Kelley v. Rice, 800 So. 2d 247 (Fla. 2d DCA 2001)…reasonable notice of the charges against her, an opportunity to meet those charges, the right to be represented by counsel, and the chance to testify and call other witnesses. See In re Oliver, 333 U.S. at 275, 68 S.Ct. 499. See also Russ v. State, 622 So. 2d 501 (Fla. 5th DCA 1993) (holding that notice of less than two days was not sufficient); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (holding that an indigent person facing actual imprisonment is entitled to appointed counsel…
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Kersh v. State Farm Fire & Cas. Co., 686 So. 2d 782 (Fla. 3d DCA 1997)…83] process safeguards are to be imposed for indirect criminal contempt proceedings); Pryor v. Wille, 644 So. 2d 346 (Fla. 4th DCA 1994) (order for indirect criminal contempt quashed when trial court failed to comply with rule 3.840); Russ v. State, 622 So. 2d 501 (Fla. 5th DCA 1993) (order finding defendant guilty of indirect criminal contempt reversed because the trial court failed to follow rule 3.840), review denied, 634 So. 2d 626 (Fla.1994); Benarroch v. Crawford, 516 So. 2d 28, 29 (Fla. 3d DCA 1987) (“…
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Wendel v. Wendel, 958 So. 2d 1039 (Fla. 1st DCA 2007)…t motion, nor did it afford her a reasonable time for preparation of a defense. See Pugliese, 347 So. 2d at 426; Flanagan v. State, 840 So. 2d 379, 380 (Fla. 1st DCA 2003); Young v. Wood-Cohan, 727 So. 2d 322, 324 (Fla. 4th DCA 1999); Russ v. State, 622 So. 2d 501, 502 (Fla. 5th DCA 1993). Noncompliance with rule 3.840 constitutes fundamental error. Hunt v. State, 659 So. 2d 363, 364 (Fla. 1st DCA 1995). Accordingly, we REVERSE the contempt order without prejudice to proceed against Appellant in accordance…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Goral v. State, 553 So. 2d 1282 (Fla. 3d DCA 1989)