NIVIA LASCAIBAR, APPELLANT,
v.
ALBERT A. LASCAIBAR, APPELLEE
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A former spouse cannot appeal a finding of not guilty in an indirect criminal contempt proceeding.
[1] A judgment of acquittal in a criminal contempt proceeding terminates the prosecution and may not be appealed.
[2] A defendant found not guilty of indirect criminal contempt is protected by the Double Jeopardy Clause.
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Join FLexlaw to unlock all legal intelligenceFollowing a dissolution of marriage, the former wife alleged the former husband was intentionally underemployed and sought indirect criminal contempt.…
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On Dismissal of Appeal
COPE, J.
In this post-dissolution-of-marriage proceeding, the question is whether the former wife can appeal after the former husband was found not guilty of indirect criminal contempt. The answer is no.
On remand from Lascaibar v. Lascaibar, 715 So. 2d 1042 (Fla. 3d DCA 1998), the trial court directed the former husband, Albert A. Lascaibar, to show cause why he should not be held in indirect criminal contempt. The former wife, Nivia Lascaibar, contended that the former husband was intentionally underemployed, thereby not earning enough to pay his child support arrearages.* The court conducted a bench trial and found the former husband not guilty. The former wife has appealed, arguing that on the evidence presented, the former husband should have been convicted.
We dismiss the appeal. “It is well established that criminal contempt, at least the sort enforced through nonsummary proceedings, is ‘a crime in the ordinary sense.’ ” United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (citations omitted). A defendant in such a proceeding is entitled to the protection of the Double Jeopardy Clause of the United States Constitution. See id.
“A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.” United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (footnote omitted). “It is acquittal that prevents retrial even if legal error was committed at the trial.” United States v. DiFrancesco, 449 U.S. 117, 132, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (citation omitted); see also 15 Fla. Jur.2d Criminal Law § 2893 (1993).
Appeal dismissed.
*
Counsel for the former wife acted as the prosecutor of the indirect criminal contempt. See generally Fla. R.Crim. P. 3.840(d); 4 Brenda M. Abrams, Florida Family Law § 70.24A (2000).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nivia Lascaibar v. Lascaibar, 156 So. 3d 547 (Fla. 3d DCA 2015)…d the acquittal. This Court dismissed the appeal as “[a] judgment of acquittal, whether based on' a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed....” Lascaibar v. Lascaibar, 773 So. 2d 1236, 1236 (Fla. 3d DCA 2000). In March 2010, the Mother filed a petition for modification of child support and custody. The general magistrate recommended that the Father owed the Mother child support arrears totaling $82,845.98 as of March 8, 2010, an…
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DE LA Portilla v. State, 142 So. 3d 928 (Fla. 1st DCA 2014)…minal contempt conviction where, as here, the original conviction was based on insufficient evidence; to hold otherwise would fall squarely in the crosshairs of what the Double Jeopardy Clauses disallow post-Dixon. See, e.g., Lascaibar v. Lascaibar, 773 So. 2d 1236 (Fla. 3d DCA 2000) (acquittal of husband on indirect criminal contempt charge barred retrial under Dixon). As such, Diaz de la Portil-la, as a defendant in a criminal contempt proceeding, is thereby protected from successive prosecution for direct c…
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Gordon v. State, 960 So. 2d 31 (Fla. 4th DCA 2007)…contempt proceedings commenced by a party in a civil suit, court reversed for new trial because trial court did not allow defendant to make closing argument). The practice is common in dissolution of marriage proceedings. In Lascaibar v. Lascaibar, 773 So. 2d 1236 n. 1 (Fla. 3d DCA 2000), the third district approvingly acknowledged the situation where “[cjounsel for the former wife acted as the prosecutor of the indirect criminal contempt.” In Mendana v. Mendana, 911 So. 2d 130 (Fla. 3d DCA 2005), the third d…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. DiFRANCESCO, 449 U.S. 117 (U.S. 1980)
- United States v. Scott, 437 U.S. 82 (U.S. 1978)
- Nivia Lascaibar v. Lascaibar, 715 So. 2d 1042 (Fla. 3d DCA 1998)