MICHAEL SRAMEK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Sramek was convicted of indirect criminal contempt for violating an injunction by leaving voicemail messages. The appellate court reversed because the order to show cause was based on police officer affidavits rather than affidavits from persons with direct personal knowledge of the facts, violating Florida Rule of Criminal Procedure 3.840.
The court held that Florida Rule of Criminal Procedure 3.840 requires the order to show cause to be based on an affidavit from a person having personal knowledge of the facts. Failure to strictly comply with this requirement is fundamental error, and Sramek's conviction must be reversed because the order to show cause was based on police officer affidavits rather than sworn statements from the victim or others with direct knowledge.
[1] An order to show cause for indirect criminal contempt must be based on an affidavit from a person with knowledge of the facts, unless issued on the judge's own motion.
[2] Failure to comply with the rule requiring a sworn affidavit for an order to show cause in an indirect criminal contempt proceeding constitutes fundamental error.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Order to Show Cause. The judge, on the judge's own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court.”
Establishes the statutory requirement that the order to show cause must be based on an affidavit from 'any person having knowledge of the facts'
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Join FLexlaw to unlock all legal intelligenceAn injunction for protection was entered against Sramek on November 10, 2004, prohibiting him from contacting the victim directly or indirectly. In la…
The full statement of facts, procedural history, and disposition for this case are member content.
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NORTHCUTT, Judge.
The circuit court convicted Michael Sra-mek of indirect criminal contempt. We reverse because the order to show cause was not based on a proper affidavit.
The prosecution of indirect criminal contempt is governed by Florida Rule of Criminal Procedure 3.840. Florida courts have held that failure to strictly follow the dictates of that rule is fundamental error. See Cone v. Gillson, 861 So. 2d 1210 (Fla. 2d DCA 2003); Mix v. State, 827 So. 2d 397, 399 (Fla. 2d DCA 2002); Hunt v. State, 659 So. 2d 363, 364 (Fla. 1st DCA 1995). Moreover, the fact that a defendant has already served his sentence does not render his appeal moot. Hagan v. State, 853 So. 2d 595, 597 (Fla. 5th DCA 2003).
Rule 3.840(a) states:
Order to Show Cause. The judge, on the judge’s own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court.
(Emphasis supplied.) Many cases hold that a conviction for indirect criminal contempt must be reversed where there has been a defect in the affidavit supporting the show cause order. See Mix, 827 So. 2d at 399 (reversing an adjudication for indirect criminal contempt because the basis of the order to show cause was an unsworn motion); Proctor v. State, 764 So. 2d 752, 753 (Fla. 2d DCA 2000) (same); Hill v. State, 643 So. 2d 1178 (Fla. 2d DCA 1994) (finding fundamental error where the affidavit in support of the order to show cause failed to state facts supporting contempt); Giles v. Renew, 639 So. 2d 701, 702-03 (1994) (same); Hunt, 659 So. 2d at 364 (reversing order of indirect criminal contempt when the show cause order was supported by an unsworn police report).
In this case, an injunction for protection had been entered against Sramek on November 10, 2004. The injunction prohibited him from contacting the victim either directly or indirectly. Later that month, the victim informed the Avon Park Police Department that Sramek had been leaving voice mail .messages on her telephone. She played the messages for two officers and told them that she recognized the voice as Sramek’s. A friend who also knew Sramek confirmed the identification. Based on this information, the officers filed affidavits asserting that Sramek had violated the injunction. These, in turn, were the bases for the order to show cause why Sramek should not be held in indirect criminal contempt.
Hagan, 853 So. 2d at 597, specifically-addressed the rule 3.840(a) requirement that the affidavit in support of the show cause order must be made by a “person having knowledge of the facts.” The affidavit in that case was signed by the investigating officer, not the victim. The Hagan court held that the affidavit was hearsay and that this failure to strictly follow the dictates of rule 3.840 was fundamental error. It reversed Hagan’s indirect criminal contempt conviction. Id.
The Hagan facts mirror the facts in this case. The affidavits filed in support of the order to show cause were not based on the officers’ personal knowledge of the facts, nor did the victim provide a sworn statement. Accordingly, we hold that the failure to abide by rule 3.840 was fundamental error, and we reverse Sramek’s conviction.
Reversed.
DAVIS and CANADY, JJ„ Concur.
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M.L.J. v. State, 93 So. 3d 348 (Fla. 2d DCA 2012)…. We reject the State’s argument that the appeal is moot because M.L.J. received a withhold of adjudication and his probationary period had expired. M.L.J. raised the legality of his disposition as well as his sentence. See, e.g., Sramek v. State, 946 So. 2d 1235, 1236 (Fla. 2d DCA 2007) (noting that the fact that a defendant has already served his sentence does not render his appeal moot) (citing Hagan v. State, 853 So. 2d 595, 597 (Fla. 5th DCA 2003)); Lamb v. State, 526 So. 2d 998, 998 (Fla. 1st DCA 1988)…
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Tjada T. Smith v. State, 144 So. 3d 651 (Fla. 2d DCA 2014)…because reversal was required due to lack of proof). . In the likely event that Ms. Smith has served her sentences in full, she may not be resen-tenced. Additionally, service of her sentences does not render this appeal moot. See Sra-mek v. State, 946 So. 2d 1235, 1236 (Fla. 2d DCA 2007).…
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Bret Mayo v. Kerry Mayo O/ B/ O Natalie Gracyn Mayo and Madeline Olivia Mayo, 260 So. 3d 497 (Fla. 2d DCA 2018)…appeal followed. "The prosecution of indirect criminal contempt is governed by Florida Rule of Criminal Procedure 3.840. Florida courts have held that failure to strictly follow the dictates of that rule is fundamental error." Sramek v. State, 946 So. 2d 1235, 1236 (Fla. 2d DCA 2007) (citing cases); see also Bray v. Rimes, 574 So. 2d 1114, 1116 (Fla. 2d 2This appeal is not rendered moot by the fact that Mayo has already served his sentence and has otherwise complied with the court's order. See Sramek…1 / 2
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
- Giles v. Renew, 639 So. 2d 701 (Fla. 2d DCA 1994)
- Hagan v. State, 853 So. 2d 595 (Fla. 5th DCA 2003)
- MIX v. State, 827 So. 2d 397 (Fla. 2d DCA 2002)
- 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)
- Hill v. State, 643 So. 2d 1178 (Fla. 2d DCA 1994)
- Proctor v. State, 764 So. 2d 752 (Fla. 2d DCA 2000)
- Allie Louis Cone, III v. Gillson, 861 So. 2d 1210 (Fla. 2d DCA 2003)