NOEL PLANK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant does not have a right to counsel for direct criminal contempt under the Sixth Amendment or Florida Rules of Criminal Procedure.
Appellant was found guilty of direct criminal contempt and sentenced for arriving drunk to jury duty and disrupting jury selection. He appealed, argui…
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ON MOTION FOR REHEARING, CLARIFICATION, REQUEST FOR WRITTEN OPINION, AND CERTIFICATION OF CONFLICT
We deny Appellant’s motion for rehearing, but grant his motion for a written opinion and substitute this opinion in place of our previously issued per curiam affir-mance.
Appellant was found guilty of direct criminal contempt and sentenced to 30 days in jail for arriving drunk to jury duty and disrupting the process of jury selection. He raises three issues in this direct appeal. We affirm two of the issues without further comment, and affirm the remaining issue for the reasons that follow.
Appellant argues that the trial court erred by not appointing him counsel or giving him an opportunity to seek counsel for the contempt proceeding. We affirm on the authority of Williams v. State, 698 So.2d 1350 (Fla. 1st DCA 1997), and Saunders v. State, 319 So.2d 118 (Fla. 1st DCA 1975), in which this court held that a defendant does not have a right to counsel under the Sixth Amendment or the Florida Rules of Criminal Procedure when charged with direct criminal contempt. Accord Searcy v. State, 971 So.2d 1008, 1014 (Fla. 3d DCA 2008); Forbes v. State, 933 So.2d 706, 711 (Fla. 4th DCA 2006); see also In re Oliver, 333 U.S. 257, 274-75, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (explaining that the right to counsel and other due process requirements are not implicated in contempt cases involving “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”) (internal quotations and ellipses omitted); In re Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 32 L.Ed. 405 (1888) (explaining that a court’s jurisdiction to punish direct contempt vests upon commission of the contemptuous act and that it is within the court’s discretion to punish the offense immediately or to postpone action until the defendant is afforded an opportunity to present a defense).
We recognize that the Second District held in Woods v. State, 987 So.2d 669 (Fla. 2d DCA 2007), and Al-Halkim v. State, 53 So.3d 1171 (Fla. 2d DCA 2011), that a defendant has a right to counsel under the Florida Rules of Criminal Procedure in direct criminal contempt proceedings. The Fourth District reached a similar conclusion in Hayes v. State, 592 So.2d 327 (Fla. 4th DCA 1992). But see Forbes, supra. Accordingly, we certify conflict with these cases.
AFFIRMED; CONFLICT CERTIFIED.
ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.
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Plank v. State, 190 So. 3d 594 (Fla. 2016)…certified conflict issue in this case is whether an individual is entitled to counsel in direct criminal contempt proceedings before incarceration is imposed as punishment. The First District Court of Appeal rejected that argument in Plank v. State, 130 So. 3d 289, 290 (Fla. 1st DCA 2014), but certified that its decision is in direct conflict with the decisions of the Second District Court of Appeal in Al-Hakim v. State, 53 So. 3d 1171, 1174 (Fla. 2d DCA 2011), and Woods v. State, 987 So. 2d 669, 674 (Fla. 2d…
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Ned Pole v. State, 198 So. 3d 961 (Fla. 2d DCA 2016)…3 So. 3d 1171, 1174 (Fla. 2d DCA 2011); Woods v. State, 987 So. 2d 669, 674 (Fla. 2d DCA 2007). The Fourth District agrees. See Hayes v. State, 592 So. 2d 327, 329 (Fla. 4th DCA 1992). However, the First District holds othérwise. See Plank v. State, 130 So. 3d 289, 290 (Fla. 1st DCA 2014). Because of this interdistriet conflict, the supreme court agreed to hear Plank to determine “whether an individual is entitled -to counsel in direct criminal proceedings before incarceration is imposed as punishment.” Plank…1 / 2
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Ulysses L. Brown v. State, 226 So. 3d 369 (Fla. 2d DCA 2017)…Mr. Plank sought review of the order, and the First District certified as an issue in conflict whether an individual is entitled to counsel in direct criminal contempt proceedings before incarceration is imposed [*372] as punishment. Plank v. State, 130 So. 3d 289, 290 (Fla. 1st DCA 2014), decision approved in part, quashed in part, 190 So. 3d 594 (Fla. 2016). After addressing the issue in conflict,4 the supreme court held that because, the allegedly contemptuous conduct for which Mr. Plank was incarcerated 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
- In re Oliver, 333 U.S. 257 (U.S. 1948)
- Ex parte Terry, 128 U.S. 289 (U.S. 1888)
- Penson v. State, 319 So. 2d 118 (Fla. 3d DCA 1975)
- Searcy v. State, 971 So. 2d 1008 (Fla. 3d DCA 2008)
- Woods v. State, 987 So. 2d 669 (Fla. 2d DCA 2007)
- Hayes v. State, 592 So. 2d 327 (Fla. 4th DCA 1992)
- Saunders v. State, 319 So. 2d 118 (Fla. 1st DCA 1975)
- Forbes v. State, 933 So. 2d 706 (Fla. 4th DCA 2006)
- Doyle Williams v. State, 698 So. 2d 1350 (Fla. 1st DCA 1997)
- Peters v. Richard "Dick" Kellman, 53 So. 3d 1171 (Fla. 1st DCA 2011)