BRADFORD C. HAGERMAN, APPELLANT,
v.
LISA J. HAGERMAN, APPELLEE
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Bradford Hagerman was adjudicated guilty of indirect criminal contempt for failing to comply with a support order. The Florida appellate court reversed the conviction because the contempt proceedings violated Rule of Criminal Procedure 3.840 by failing to set forth essential facts in the show cause order and contempt judgment, and because the evidence was insufficient to prove willful violation beyond a reasonable doubt.
The contempt order is reversed because: (1) the show cause order violated rule 3.840(a) by failing to set forth essential facts constituting the charged contempt and relying on an unsworn motion rather than an affidavit; (2) the contempt order violated rule 3.840(r) by failing to recite the facts constituting contemptuous conduct; and (3) the evidence was insufficient to establish beyond a reasonable doubt that Hagerman willfully violated the prior court order.
[1] A show cause order in a criminal contempt proceeding must set forth the essential facts constituting the alleged contempt.
[2] A motion supporting a criminal contempt charge must be sworn to or constitute an affidavit as required by rule.
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Join FLexlaw to unlock all legal intelligence“The initial show cause order issued to Hagerman in the contempt proceeding failed to set forth, as required by rule 3.840(a), any of the essential facts which purportedly constituted the charged criminal contempt.”
Establishes the first basis for reversal—the show cause order's non-compliance with procedural rule requirements.
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Join FLexlaw to unlock all legal intelligenceHagerman was charged with indirect criminal contempt for allegedly violating a prior court order regarding spousal support entered in a marital dissol…
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THREADGILL, Acting Chief Judge.
Bradford C. Hagerman appeals a trial court order, which adjudicates him guilty of indirect criminal contempt for failure to comply with a support order entered in a previous marital dissolution proceeding. The facts giving rise to the contempt proceeding are not essential to our decision, so we do not recite them. Despite the trial judge’s stated intentions to proceed in accordance with the applicable rules, the proceedings failed to comply with the requirements of Florida Rule of Criminal Procedure 3.840. For that reason, we reverse.
The initial show cause order issued to Hagerman in the contempt proceeding failed to set forth, as required by rule 3.840(a), any of the essential facts which purportedly constituted the charged criminal contempt. It merely stated that it appeared that Hagerman had violated a prior court order, and that the matter was consequently before the trial court on a motion filed by the former wife. The former wife’s motion, however, was not sworn to and did not otherwise constitute an affidavit, as required by the rule. See Fla. R.Crim. P. 3.840(a). The show cause order was therefore deficient. See Lindman v. Ellis, 658 So. 2d 632 (Fla. 2d DCA 1995).
The contempt order itself fails to comply with rule 3.840®, in that it does not recite the facts which constitute the contemptuous conduct. It merely holds Hagerman in willful indirect criminal contempt for violating a prior court order. Citing Gidden v. State, 613 So. 2d 457 (Fla.1993), the State argues that written findings are unnecessary where sufficient oral findings are made on the record. In this instance, however, the trial judge made no factual findings — he merely found Hager-man in contempt and sentenced him.
Hagerman argues, and we agree, that the evidence was insufficient to prove beyond a reasonable doubt that he willfully violated a prior court order. The only sworn testimony presented at the hearing was that of Hagerman who, acting pro se, explained his conduct by denying that he willfully violated the order. There was no other sworn testimony in support of the contempt allegations; rather, only the arguments of the former wife’s attorney. Since Hagerman’s intention to disobey the court order was required to be established by proof beyond a reasonable doubt, the evidence at the hearing was insufficient. See Hunnefeld v. Futch, 557 So. 2d 916 (Fla. 4th DCA 1990).
The State argues that none of the errors raised by Hagerman were preserved for review, because he failed to object at the hearing. The State acknowledges, however, that this and other courts have ruled that the failure to comply with rule 3.840 is fundamental error and no objection is required. See Cole v. State, 714 So. 2d 479 (Fla. 2d DCA 1998); Giles v. Renew, 639 So. 2d 701 (Fla. 2d DCA 1994); Reins v. Johnson, 604 So. 2d 911 (Fla. 2d DCA 1992); Bray v. Rimes, 574 So. 2d 1114 (Fla. 2d DCA 1990); Hunt v. State, 659 So. 2d 363 (Fla. 1st DCA 1995); Starchk v. Wittenberg, 411 So. 2d 1000 (Fla. 5th DCA 1982); Deter v. Deter, 353 So. 2d 614 (Fla. 4th DCA 1977). We disagree with the State’s argument that the foregoing cases were decided incorrectly.
Accordingly, the contempt order is reversed.
Reversed.
FULMER and DAVIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Garrett v. State, 876 So. 2d 24 (Fla. 1st DCA 2004)…at appellant failed to preserve the issue for appellate review. Appellant responds that preservation of error is not required because any defect in the contempt proceeding is fundamental error. The cases relied on by appellant, Hagerman v. Hagerman, 751 So. 2d 152 (Fla. 2d DCA 2000), and Hunt v. [*26] State, 659 So. 2d 363 (Fla. 1st DCA 1995), involve rule 3.840, Florida Rules of Criminal Procedure, involving indirect criminal contempt; however, the State presents no cogent reason why direct criminal contempt…
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Price v. Hannahs, 954 So. 2d 97 (Fla. 2d DCA 2007)…tside the presence of the court, any contempt at issue here would be indirect. See id. Indirect criminal contempt requires a judgment of guilt that recites the facts constituting the contempt. Fla. R.Crim. P. 3.840(f); see also Hagerman v. Hagerman, 751 So. 2d 152 (Fla. 2d DCA 2000) (reversing order that failed to recite factual basis for contempt). Here, the circuit court did not find Dr. Price to be in contempt, and it did not recite a factual basis for doing so. Ergo, we must reverse the $1500 sanction. I…
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MIX v. State, 827 So. 2d 397 (Fla. 2d DCA 2002)…requiring the defendant to appear before [*399] the court to show cause why the defendant should not be held in contempt of court.” Mix correctly argues that the order to show cause issued against him was legally deficient. In Hagerman v. Hagerman, 751 So. 2d 152 (Fla. 2d DCA 2000), this court concluded that an order to show cause was deficient when it simply stated that it appeared the defendant had violated a prior court order and failed to set forth any of the essential facts which purportedly constituted…
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 (12 total)
- Gidden v. State, 613 So. 2d 457 (Fla. 1993)
- Deter v. Dinina D. Deter, 353 So. 2d 614 (Fla. 4th DCA 1977)
- Starchk v. Wittenberg, 411 So. 2d 1000 (Fla. 5th DCA 1982)
- Giles v. Renew, 639 So. 2d 701 (Fla. 2d DCA 1994)
- Dep't OF Cmty. Affairs & Jack David Kelly v. Escambia Cnty. & Home Builders of W. Fla., Inc., 714 So. 2d 479 (Fla. 1st DCA 1998)
- Bray v. Rimes, 574 So. 2d 1114 (Fla. 2d DCA 1990)
- Green v. State, 659 So. 2d 363 (Fla. 1st DCA 1995)
- Ests. OF William H. Schutt v. Robert Spielman and wife, 659 So. 2d 363 (Fla. 1st DCA 1995)
- Hunnefeld v. Honorable Daniel Futch, 557 So. 2d 916 (Fla. 4th DCA 1990)
- Reins v. Johnson, 604 So. 2d 911 (Fla. 2d DCA 1992)