MARK T. HASH, PETITIONER,
v.
STATE OF FLORIDA AND RESCHIN MOORE, RESPONDENTS
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Mark Hash petitioned for a writ of habeas corpus challenging his criminal contempt conviction and five-month jail sentence. The Florida District Court of Appeal, First District, granted the petition, finding that the trial court failed to provide adequate notice of the specific facts constituting the contempt charges, violating due process requirements.
The trial court's order was insufficient because it failed to provide notice of the essential facts constituting the criminal contempt, violating due process requirements. Additionally, the alleged misrepresentations, not being made in the immediate presence of the court, could not constitute direct criminal contempt but only indirect criminal contempt, for which adequate notice was not provided.
[1] A defendant must receive notice of the essential facts constituting indirect criminal contempt and an opportunity to show cause why a sentence should not be imposed.
[2] Due process requires that an accused be sufficiently advised of the charges to have a reasonable opportunity to meet them by way of defense or explanation.
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Join FLexlaw to unlock all legal intelligence“[P]rior to the imposition of a sentence for indirect criminal contempt ... [a] defendant must receive notice of the essential facts that constitute the criminal contempt and have an opportunity to show cause why the sentence should not be imposed.”
Establishes the due process requirement for adequate notice before imposing indirect criminal contempt sentences.
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Join FLexlaw to unlock all legal intelligenceThe trial court issued an order requiring Hash to show cause why he should not be held in criminal contempt, but the order did not specify any facts o…
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Via emergency order, this panel granted the petition for writ of habeas corpus which challenged the petitioner’s incarceration upon a finding of criminal contempt. We now write to explain our reasoning.
By order of October 3, 2013, the lower tribunal held the petitioner in both direct and indirect criminal contempt of court and sentenced him to 5 months and 29 days in jail. The lower tribunal’s order to show cause why the petitioner should not be held in criminal contempt of court did not include any facts or specific allegations constituting the basis for the purported criminal contempt; instead, the order simply stated, “Mark Hash shall appear at the Court at 10:45 a.m. on September 18, 2013, in Courtroom 3H, of the Leon County Courthouse, Tallahassee, Florida, and show cause why he should not be held in contempt of court and if found in contempt, to be sanctioned as appropriate, including jail time and attorney’s fees.” This notice was insufficient. “[P]rior to the imposition of a sentence for indirect criminal contempt ... [a] defendant must receive notice of the essential facts that constitute the criminal contempt *352and have an opportunity to show cause why the sentence should not be imposed.” Anton v. Anton, 106 So.3d 34 (Fla. 3d DCA 2013); see also Fla. R. Crim. P. 3.840(a), (g). “Due process of law requires that the accused be sufficiently advised of the charge so as to accord him reasonable opportunity to meet the charges by way of defense or explanation.” Deter v. Deter, 353 So.2d 614, 617-18 (Fla. 1st DCA 1977). Fundamental error results when a trial court fails to comply with this rule. See Anton at 35 (citing Pugliese v. Puqliese, 347 So.2d 422 (Fla.1977)).
Inasmuch as the order finding the petitioner guilty of contempt of court appeared to also find the petitioner guilty of direct criminal contempt for making “misrepresentations,” the order only discusses specific misrepresentations that were made outside the presence of the court. Not having been witnessed or heard directly by the trial court, these cannot constitute direct criminal contempt. See J.M. v. Gargett, 101 So.3d 352, 353 n. 1 (Fla. 2012) (citing A.A. v. Rolle, 604 So.2d 813, 814 n. 5 (Fla.1992) for the proposition that direct criminal contempt “ ‘occurs when the act constituting the contempt is committed in the immediate presence of the court’ ”). The court’s order does not discuss any specific conduct committed in the direct presence of the court. Accordingly, the facts alleged in the court’s order support only a finding of indirect criminal contempt — a charge for which the petitioner failed to receive adequate notice.
PETITION GRANTED.
WOLF, CLARK, and MARSTILLER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Rocco Pugliese v. Pugliese, 347 So. 2d 422 (Fla. 1977)
- A.A. v. Cornell Rolle, 604 So. 2d 813 (Fla. 1992)
- Deter v. Dinina D. Deter, 353 So. 2d 614 (Fla. 4th DCA 1977)
- J.M. v. Gargett, 101 So. 3d 352 (Fla. 2012)
- Anton v. Anton, 106 So. 3d 34 (Fla. 3d DCA 2013)