ANGELBERTO DECORO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A former husband appealed his indirect criminal contempt conviction, arguing that the trial court lacked proper procedural authority to issue an order to show cause because no sworn affidavit or testimony supported it. The court reversed, holding that Florida Rule of Criminal Procedure 3.840 requires either an affidavit or sworn testimony before an order to show cause can issue, and absent such compliance, the contempt order cannot stand.
An indirect criminal contempt proceeding must comply with Rule 3.840, which requires either an affidavit of a person having knowledge of the facts or sworn testimony to support an order to show cause. The absence of such sworn support constitutes fundamental error, and a contempt order arising from a defective proceeding cannot stand.
[1] An indirect criminal contempt proceeding must comply with the procedural requirements of Florida Rule of Criminal Procedure 3.840.
[2] An order to show cause in an indirect criminal contempt proceeding may issue on the affidavit of any person having knowledge of the facts, unless the order issues on the…
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Join FLexlaw to unlock all legal intelligence“An indirect criminal contempt proceeding must comply with the procedural requirements of Florida Rule of Criminal Procedure 3.840.”
Establishes the mandatory procedural requirement that governs contempt proceedings
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Join FLexlaw to unlock all legal intelligenceA trial court issued an order to show cause against a former husband in an indirect criminal contempt proceeding. The only documentation supporting th…
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PER CURIAM.
Arguing the absence of a sworn affidavit or testimony to support the trial court’s issuance of an order to show cause, a former husband appeals the court’s order finding him guilty of indirect criminal contempt. See Fla. R.Crim. P. 3.840. As outlined in Baker v. Green, 732 So. 2d 6, 7 (Fla. 4th DCA 1999):
An indirect criminal contempt proceeding must comply with the procedural requirements of Florida Rule of Criminal Procedure 3.840. See Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla.1985). In this case there was no sworn affidavit or testimony to support the trial court’s issuance of the order to show cause. If the order does not issue on the judge’s own motion, Rule 3.840(a) provides that an order to show cause may issue “on affidavit of any person having knowledge of the facts.” Where there is no affidavit or sworn testimony to support the issuance of an order to show cause, the failure to comply with the rule is fundamental error and a contempt 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).
In the instant ease, there is only the caption verified on the pleadings, followed by an acknowledgment, which is different than swearing to a fact. Rule 3.840 had its basis in the common law; being a criminal proceeding, it must be initiated by an indictment, information, or some other accusatory pleading. Accordingly, we reverse without prejudice the order holding the former husband in contempt. The wife may properly proceed in compliance with rule 3.840.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Yilka de Castro v. Scorpio de Castro, 957 So. 2d 1258 (Fla. 3d DCA 2007)…rida Supreme Court and this court have long held that the failure to comply with the procedural requirements of Florida Rule of Criminal Procedure 3.840 constitutes fundamental error. Pugliese v. Pugliese, 347 So. 2d 422 (Fla.1977); Decoro v. State, 771 So. 2d 627 (Fla. 3d DCA 2000); De Mauro v. State, 632 So. 2d 727 (Fla. 3d DCA 1994). The trial court’s failure to comply with the procedural requirements of rule 3.840, therefore, requires reversal. We also conclude that the trial court’s sua sponte modificat…
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Baratta v. Costa-Martinez, 252 So. 3d 408 (Fla. 3d DCA 2018)…dure 3.840, applicable to indirect criminal contempt proceedings. See Maher v. Junior, 198 So. 3d 949 (Fla. 3d DCA 2016); Anton v. Anton, 106 So. 3d 34 (Fla. 3d DCA 2013); De Castro v. De Castro, 957 So. 2d 1258 (Fla. 3d DCA 2007); Decoro v. State, 771 So. 2d 627 (Fla. 3d DCA 2000); Baker v. Green, 732 So. 2d 6 (Fla. 4th DCA 1999). We therefore reverse the trial court’s finding of indirect criminal contempt without prejudice. Reversed.…
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Marlen Pernetti v. Telesforo Nino Pernetti, 299 So. 3d 479 (Fla. 3d DCA 2020)…der to show cause. See id. (citing De Castro v. De Castro, 957 So. 2d 1258 (Fla. 3d DCA 2007)). Here, “there is only the caption verified on the pleadings, followed by an acknowledgment, which is different than swearing to a fact.” Decoro v. State, 771 So. 2d 627, 628 (Fla. 3d DCA 2000). Finally, prior to the trial court’s written pronouncement finding the former wife in 1 See Int’l Med. Centers, Inc. v. Colavecchio, 563 So. 2d 784, 785 (Fla. 4th DCA 1990). contempt and sentencing her to incarceration, th…
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)
- Starchk v. Wittenberg, 411 So. 2d 1000 (Fla. 5th DCA 1982)
- Baker v. Green, 732 So. 2d 6 (Fla. 4th DCA 1999)
- 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)
- Reins v. Johnson, 604 So. 2d 911 (Fla. 2d DCA 1992)
- LEE Cnty. Elec. Coop., Inc. v. Cook, 604 So. 2d 911 (Fla. 2d DCA 1992)
- Judkins v. Ross, 658 So. 2d 658 (Fla. 1st DCA 1995)
- Glispy v. State, 608 So. 2d 589 (Fla. 4th DCA 1992)
- Donnie Gene Craig v. State, 608 So. 2d 589 (Fla. 4th DCA 1992)