JOHN TIMOTHY GRATZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2012-04-11
No. 3D10-3004
Before RAMIREZ, LAGOA and EMAS, JJ.
84 So. 3d 1219 Florida District Court of Appeal, Third District (2012) Caution
Cited by 10 cases

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Synopsis

John Timothy Gratz was adjudged in indirect criminal contempt for willful failure to pay child support and sentenced to ninety days in jail. The Florida District Court of Appeal reversed and remanded, finding that the trial court abused its discretion by denying a continuance request when appointed counsel had only six days (four business days) to prepare for the contempt hearing.


Holding

The court reversed the contempt conviction and vacated the sentence, holding that six days (four business days) was insufficient time for appointed counsel to prepare for the contempt hearing and that the trial court abused its discretion in denying the continuance request, particularly where willfulness was a central disputed issue requiring witness testimony.


Headnotes

[1] A trial court abuses its discretion by denying a continuance when defense counsel has insufficient time to prepare for a contempt hearing, particularly when the issue of…

[2] Willfulness is an essential element of criminal contempt that must be established beyond a reasonable doubt.

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Key Quotes

“indirect criminal contempt may be punished only after strict compliance with the guidelines set forth in Florida Rule of Criminal Procedure 3.840, and failure to strictly follow rule 3.840 constitutes fundamental, reversible error.”

Establishes that strict compliance with procedural rules in contempt proceedings is mandatory and violations constitute fundamental error.

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Facts & Procedural History

Gratz was obligated to pay $572.81 per month in child support pursuant to a 2002 divorce judgment. By 2010, he owed over $24,000 in arrears. Loretta f…

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Opinion of the Court
EMAS, J.

EMAS, J.

John Timothy Gratz (“Gratz”) appeals from an order adjudging him in indirect criminal contempt and sentencing him to ninety days in jail. We reverse the contempt order and vacate the sentence because, under the circumstances presented, the trial court abused its discretion in denying a requested continuance to permit Gratz and his counsel to properly prepare to defend the allegations in the show cause order.

This case arose out of post-judgment proceedings related to a dissolution of marriage between Loretta Diane Gratz (“Loretta”) and Gratz, which was dissolved by a final judgment in 2002. Pursuant to this judgment, Gratz was obligated to pay child support in the amount of $572.81 per month. At the time of the judgment, Gratz was already in arrears on his child support obligation.

In 2007, after Gratz failed to pay child support, Loretta moved to establish the exact amount of arrearage and to establish an arrearage repayment. The trial court determined that child support arrears at that point exceeded $26,000, and ordered Gratz to repay the arrearage at the rate of $114.56 per month.

In 2010, Loretta filed a Verified Motion for Order to Show Cause. In this motion, Loretta alleged that Gratz still owed past due child support totaling more than *1221$24,000. Loretta further alleged that Gratz had the ability to pay child support, averring that Gratz, by his own admission under oath, had received a $10,000 check from GEICO insurance company in conjunction with the settlement of an unrelated personal injury claim, and used that money to pay for legal services rather than his child support obligations.1

On or about June 15, 2010, the court issued an Order to Show Cause directing Gratz to appear before the court on August 12, 2010 to be arraigned, and at that time show cause why he should not be held in indirect criminal contempt for his “willful failure” to comply with the court’s prior orders. On July 27, 2010, the court entered an order appointing the public defender’s office to represent Gratz at the August 12 contempt hearing. However, and significant to our disposition of this appeal, appointed counsel did not become aware of the appointment, receive a copy of the order of appointment, or first speak with Gratz, until August 10, 2010, two days before the scheduled contempt hearing.

The parties and counsel appeared in court on Thursday, August 12, 2010. At that time, defense counsel requested a continuance, advising the court that he was not ready, and explaining that he had only become aware of his appointment (and obtained a copy of the show cause order) on August 10. The court granted the requested continuance, but in doing so offered defense counsel only three possible dates for the rescheduled hearing: August 16, 17 or 20. Given these limited choices and defense counsel’s trial schedule,2 the case was set for a final contempt hearing on Monday, August 16, only two business days following the August 12th hearing.

On August 16, defense counsel initially announced he was “ready” for the hearing, but immediately thereafter moved for a continuance, contending, inter alia, that Gratz was being denied a meaningful right to be heard because of the mere six days between service of the show cause order upon defense counsel and the contempt hearing. Defense counsel reminded the court that counsel had only become aware of the case, and his appointment, on August 10, and advised the court that the four-day continuance (from August 12 until August 16) was insufficient time to prepare. Defense counsel told the court that he had witnesses who would testify at the contempt hearing but that he did not have sufficient time to subpoena those witnesses to appear at the August 16th hearing.

The court denied the motion to continue and proceeded with the contempt hearing.3 The trial court had previously appointed Ms. Maxwell, an attorney with the Florida Department of Revenue, to prosecute the contempt charge. Ms. Maxwell called two witnesses to testify at the *1222hearing. Following their testimony, defense counsel renewed his objection to the hearing because he was unable to subpoena witnesses on behalf of his client.

Thereafter, Gratz took the stand and testified on his own behalf. In his testimony, Gratz conceded that he received a check in the amount of $10,000 in settlement for an accident in which he dislocated his shoulder. He explained that the money was placed into the trust account of his attorney, Mr. Kaufman, who represented Gratz in the personal injury case as well as in the post-judgment relocation hearing. Mr. Kaufman received $3500 for legal services rendered in the personal injury matter, and the balance was applied to Mr. Kaufman’s legal fees and an expert witness’ fees and costs in connection with contesting the post-judgment motion for relocation. Gratz testified that Mr. Kaufman was aware of the child support ar-rearage and the outstanding orders to pay, and that Mr. Kaufman had not advised Gratz of any problem in using the remaining proceeds ($6500) to pay legal fees and expert witness fees related to the relocation proceeding. Gratz testified that he did not willfully disobey the court’s orders by using the settlement proceeds to pay his attorney and the expert witness.

At the conclusion of the hearing, the trial court found Gratz in willful contempt of court, and at a subsequent hearing the court imposed a sentence of ninety days in jail.

Florida Rule of Criminal Procedure 3.840(d) governs arraignment and hearings when a defendant is faced with indirect criminal contempt:

(d) Arraignment; Hearing. The defendant may be arraigned at the time of the hearing, or prior thereto at the defendant’s request. A hearing to determine the guilt or innocence of the defendant shall follow a plea of not guilty. The judge may conduct a hearing without the assistance of counsel or may be assisted by the prosecuting attorney or by an attorney appointed for that purpose. The defendant is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and testify in his or her own defense. All issues of law and fact shall be heard and determined by the judge.

(Emphasis added).

This Court has held that “indirect criminal contempt may be punished only after strict compliance with the guidelines set forth in Florida Rule of Criminal Procedure 3.840, and failure to strictly follow rule 3.840 constitutes fundamental, reversible error.” Berlow v. Berlow, 21 So.3d 81, 84 (Fla. 3d DCA 2009) (internal citations omitted). See also Baumgartner v. Joughin, 105 Fla. 335, 141 So. 185, 187 (1932) (“Due process of law in the prosecution of contempt, except that committed in open court, requires that the accused should be advised of the charges against him and have a reasonable opportunity to meet them by way of defense or explanation. This includes the right to assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense, and in mitigation of the penalty to be imposed.”).

We conclude that, under the circumstances of this case, Gratz established that six days (and only four business days) was insufficient time for his counsel to prepare for the final contempt hearing. The issue in this case was not the act (which Gratz acknowledged), but whether the act was committed in willful disobedience of the court’s orders (which Gratz denied). Willfulness is an essential element of criminal contempt, Wells v. State, 654 So.2d 146 (Fla. 3d DCA 1995), and, *1223like any other element, must be established beyond a reasonable doubt. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Parisi v. Broward Cnty., 769 So.2d 359 (Fla.2000). Defense counsel sought a continuance of the contempt hearing to subpoena witnesses who could have provided testimony on a central issue of the show cause order: whether Gratz’s conduct was in willful disobedience of the court’s orders. In denying the motion for continuance, the trial court abused its discretion.

Accordingly, we reverse the lower court’s order adjudging Gratz in indirect criminal contempt of court and vacate the sentence. We remand this cause for proceedings consistent with this opinion.4


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Citator

Cited By

  • Christofer Korn v. Korn, 180 So. 3d 1122 (Fla. 4th DCA 2015)
    …02 (Fla. 5th DCA 1993) (two days after service of order to show cause held insufficient); Goral v. State, 553 So. 2d 1282, 1283 (Fla. 3d DCA 1989) (two “actual working days notice of the contempt hearing” held insufficient); see also Gratz v. State, 84 So. 3d 1219, 1222 (Fla. 3d DCA 2012) (holding six days notice to defense counsel was “insufficient time for counsel to prepare for final contempt hearing”); Givner v. State, 559 So. 2d 466 (Fla. 4th DCA 1990) (holding that serving order to show cause on “the 26…
  • White v. Junior, 219 So. 3d 230 (Fla. 3d DCA 2017)
    …tial mitigating evidence. The trial court denied this request. We conclude that White was not afforded ‘‘a reasonable time... for preparation of the defense after service of the order on the defendant.” Fla. R. Crim. P. 3.840(a), See Gratz v. State, 84 So. 3d 1219 (Fla. 3d DCA 2012); Goral v. State, 553 So. 2d 1282 (Fla. 3d DCA 1989); Korn v. Korn, 180 So. 3d 1122 (Fla. 4th DCA 2015); Russ v. State, 622 So. 2d 501 (Fla. 5th DCA 1993). . We note that, by the time this court issued its temporary stay and order…
  • Sandelier v. State, 238 So. 3d 831 (Fla. 4th DCA 2018)
    …on his behalf, but had no time in which to do so. Given the proverbial “rock and the hard place” in which the defendant was situated, it is not surprising he felt pressured into going forward with this impromptu hearing. See, e.g., Gratz v. State, 84 So. 3d 1219, 1221 n.3 (Fla. 3d DCA 2012) (“Given the limited choices of trial dates afforded the defense, and defense counsel’s immediate clarification of his readiness and articulated reasons why a continuance was necessary, we reject the State’s waiver argume…

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