MALISSA FIORE, APPELLANT,
v.
ALEXIS ATHINEOS, APPELLEE
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The Fourth District Court of Appeal reversed a finding of direct criminal contempt against a mother for her failure to execute and return passport applications, holding that the mother's conduct did not occur in the actual presence of the court and therefore did not qualify as direct criminal contempt under Florida Rule of Criminal Procedure 3.830.
The conduct did not constitute direct criminal contempt because it did not occur in the actual presence of the court. Direct criminal contempt under Rule 3.830 requires misconduct committed in open court in the presence of the judge that disturbs the court's business. The mother's failure to execute and return the applications occurred outside the judge's presence and therefore constitutes indirect criminal contempt, which requires compliance with Rule 3.840 procedures.
[1] Direct criminal contempt requires conduct committed in the actual presence of the court.
[2] Conduct occurring outside the judge's presence constitutes indirect criminal contempt and requires adherence to specific procedural rules.
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Join FLexlaw to unlock all legal intelligence“Direct criminal contempt results from conduct committed in the actual presence of the judge. It may be punished summarily pursuant to Florida Rule of Criminal Procedure 3.830.”
Establishes the fundamental definition and summary punishment authority for direct criminal contempt
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Join FLexlaw to unlock all legal intelligenceIn a paternity and dependency action, the trial court ordered the mother (Fiore) to execute her children's passport applications in open court on Apri…
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We reverse the circuit court’s order finding Malissa Fiore in direct criminal contempt in a combined paternity and dependency action.
On April 7, 2008, the court ordered the mother to execute her children’s passport applications in open court. She signed the passport applications under protest and executed an affidavit. The court said, “Defense counsel, thank you for your client’s compliance with this order.” At a hearing on April 14, without a written motion or notice to Fiore, the father told the court that the passport application required additional information and needed to be notarized. The trial court instructed Fiore to fully execute the new passport applications provided to her by the father. The court neither entered a new written order concerning the passport applications nor specified a date of compliance. Fiore took the applications and stated she would execute and return them to the father within a few days.
Problems later developed with Fiore’s handling of the passport applications. The circuit court treated her conduct as direct criminal contempt, but it was not. The conduct concerning the contempt — the mother’s failure to execute and return completed passport applications to the father — did not occur in the “actual presence of the court.” Fla. R. Crim. P. 3.830.
Direct criminal contempt results from conduct committed in the actual presence of the judge. It may be punished *1293summarily pursuant to Florida Rule of Criminal Procedure 3.830. See Gidden v. State, 613 So.2d 457, 460 (Fla.1993). Direct criminal contempt under Rule 3.830 involves a limited category of contempt. See In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 92 L.Ed. 682 (1948). As the United States Supreme Court has explained, direct criminal contempt typically
includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent ‘demoralization of the court’s authority before the public.’
Id. at 275, 68 S.Ct. 499 (quoting Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925)).
On the other hand, indirect criminal contempt concerns conduct outside the judge’s presence and may be punished only after following the procedures set forth in Rule 3.840. Gidden, 613 So.2d at 460. Strict compliance with Rule 3.840 is required in indirect criminal contempt proceedings. E.g., Levey v. D’Angelo, 819 So.2d 864, 869 (Fla. 4th DCA 2002).
Here, the judge did not follow the procedures of rule 3.840. We understand the judge’s frustration with the time it took to have Fiore perform a simple task. We note that the record supports the judge’s imposition of $1,175 in attorney’s fees as a sanction against Fiore.
As to the other issue on appeal, we find that the trial court had subject matter jurisdiction to hear the father’s post-judgment request concerning the passport applications.
We therefore affirm the June 24, 2008 order granting the father’s motion to compel and imposing sanctions and reverse the order finding Fiore in direct criminal contempt.
GROSS, C.J., WARNER and CIKLIN, JJ., concur.
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Blechman v. Dely, 138 So. 3d 1110 (Fla. 4th DCA 2014)…e defendant to appear before the court to show cause why the defendant should not be held in contempt of court.” Fla. R. Crim. P. 3.840(a). “Strict compliance with Rule 3.840 is required in indirect criminal contempt proceedings.” Fiore v. Athineos, 9 So. 3d 1291, 1293 (Fla. 4th DCA 2009). The proceedings below did not comply with rule 3.840, as the order to show cause did not set forth the “essential facts” constituting the contempt charged and did not even state whether the contempt was civil or criminal.…
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Myer Berlow v. Berlow, 21 So. 3d 81 (Fla. 3d DCA 2009)…contempt can be either direct or indirect. Direct criminal contempt results from conduct committed in the trial court's actual presence, whereas indirect criminal contempt results from conduct outside of the judge's presence. See Fiore v. Athineos, 9 So. 3d 1291, 1293 (Fla. 4th DCA 2009). If the trial court intended to hold the former husband in criminal contempt, it was for indirect criminal contempt because the conduct did not occur in the trial judge’s presence.…
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G.G.J. v. State, 28 So. 3d 239 (Fla. 4th DCA 2010)…bused its discretion in holding G.G.J. in direct criminal contempt.1 Reversed. TAYLOR and LEVINE, JJ., concur. . Normally, "[d]irect criminal contempt results from conduct committed in the actual presence of the judge." Fiore v. Athineos, 9 So. 3d 1291, 1292 (Fla. 4th DCA 2009). However, we have held that a defendant who fails to appear may be summarily punished for direct criminal contempt after failing to provide an adequate excuse for the nonappearance. Woods v. State, 600 So. 2d 27, 29 (Fla. 4…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Oliver, 333 U.S. 257 (U.S. 1948)
- Cooke v. United States, 267 U.S. 517 (U.S. 1925)
- Gidden v. State, 613 So. 2d 457 (Fla. 1993)
- Levey v. D'Angelo, 819 So. 2d 864 (Fla. 4th DCA 2002)