ZEBULON MCCRIMAGER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Zebulon McCrimager appeals his direct criminal contempt conviction, arguing the trial court failed to follow procedural requirements under Florida Rule of Criminal Procedure 3.830, including not reciting factual findings, denying him the opportunity to present mitigating circumstances, and improperly imposing a sentence "at hard labor." The appellate court reversed and remanded the case, finding strict compliance with Rule 3.830 is required.
The trial court must comply strictly with Rule 3.830 by: (1) providing the defendant an opportunity to present evidence of excusing or mitigating circumstances before adjudication; and (2) issuing a written judgment reciting the facts upon which adjudication is based. A six-month contempt sentence without jury trial is lawful, but the sentence may not include "at hard labor" language, which is not authorized under Florida law.
[1] A trial court must provide a defendant with an opportunity to present evidence of excusing or mitigating circumstances before adjudicating guilt for direct criminal conte…
[2] A written judgment adjudicating guilt for direct criminal contempt must recite the facts upon which the adjudication is based.
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Join FLexlaw to unlock all legal intelligence“the defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances”
Establishes the mandatory procedural requirement under Rule 3.830 that must be followed before adjudication of guilt in direct criminal contempt cases
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Join FLexlaw to unlock all legal intelligenceAppellant was adjudicated guilty of direct criminal contempt by the trial court. The trial court issued a judgment without reciting the facts supporti…
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PER CURIAM.
Appellant appeals his judgment and sentence on a direct criminal contempt conviction. Specifically, Appellant contends the trial court erred by: (1) not reciting the facts upon which Appellant was adjudicated guilty in its written judgment; (2) failing to give Appellant an opportunity to present mitigating circumstances at trial; (3) including the language “at hard labor” in its order committing Appellant to county jail; and (4) sentencing Appellant for a period of six months without a trial by jury.
Florida Rule of Criminal Procedure 3.830, which governs the procedure for adjudicating a defendant guilty of direct criminal contempt, provides that “the defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances” prior to the adjudication of guilt. If the trial court decides to go forward with the adjudication after the defendant presents such circumstances, it must issue a written and signed judgment reciting the facts upon which an adjudication is based. See Fla. R.Crim. P. 3.830; see also, e.g., Hutcheson v. State, 903 So. 2d 1060, 1062 (Fla. 5th DCA 2005). In the case at bar, neither of these requirements were met.
Because “[s]trict compliance with Rule 3.830 is necessary to safeguard procedural due process,” Appellant must be given the opportunity to present mitigating circumstances to the trial court. If the trial court maintains its position that Appellant was in direct criminal contempt, its written judgment must recite the facts surrounding this finding. As to the sentence, it is well settled that a six-month sentence is proper for a contempt conviction entered without a trial by jury. See, e.g. Superville v. State, 642 So. 2d 1193 (Fla. 1st DCA 1994); Aaron v. State, 345 So. 2d 641, 643 (Fla.1977); Martinez v. State, 339 So. 2d 1133 (Fla. 2d DCA 1976). However, Florida law does not contain a provision for a sentence “at hard labor,” thus this language shall not be included in Appellant’s sentence nor the order committing him to county jail. REVERSED and REMANDED for proceedings consistent with this opinion.
KAHN, C.J., HAWKES, and THOMAS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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In re Steffens, 988 So. 2d 142 (Fla. 5th DCA 2008)…the State prove the offense beyond a reasonable doubt and the right against self-incrimination. See Bagwell, 512 U.S. at 826-27, 114 S.Ct. 2552. Strict compliance with rule 3.840 is necessary to safeguard procedural due process. McCrimager v. State, 919 So. 2d 673 (Fla. 1st DCA 2006). Because the contempt proceeding did not comply with rule 3.840, we must reverse. On remand, the court may, if it so chooses, proceed again with contempt proceedings in conformity with the authorities discussed herein. REVERSED…
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Cuesta v. State, 929 So. 2d 648 (Fla. 3d DCA 2006)….”). See also Moore v. Peavey, 729 So. 2d 494, 495 (Fla. 5th DCA 1999); Singletary v. Carpenter, 705 So. 2d 110 (Fla. 2d DCA 1998). This rule applies to county jails as well as to facilities run by the Department of Corrections. McCrimager v. State, 919 So. 2d 673, 674 (Fla. 1st DCA 2006)(striking provision for “hard labor” in county jail sentence). We are not insensitive to the frustrations of the trial court in desiring to punish Cuesta for failing to comply with its order to testify, but the court lacked…
Authorities Cited
- Martinez v. State, 339 So. 2d 1133 (Fla. 2d DCA 1976)
- Aaron v. State, 345 So. 2d 641 (Fla. 1977)
- Hutcheson v. State, 903 So. 2d 1060 (Fla. 5th DCA 2005)
- Superville v. State, 642 So. 2d 1193 (Fla. 1st DCA 1994)
- Gov't Emps. Ins. Co. v. Jenkins, 642 So. 2d 1193 (Fla. 5th DCA 1994)