SAMUEL PEREZ

v.

STATE OF FLORIDA AND MADISON WEISS

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES

TO FILE MOTION FOR REHEARING

AND DISPOSITION THEREOF IF

FILED

SAMUEL PEREZ

Petitioner,

v. Case No. 5D22-414 LT Case Nos. 2021-DR-001655 2022-MM-000483-A

STATE OF FLORIDA and

MADISON WEISS

Respondents. ________________________________/

Opinion filed March 14, 2022

Petition for Writ of Habeas Corpus A Case of Original Jurisdiction.

Shenee M. Craig, of The Legal Justice Law Firm, P.A., Orlando, for Petitioner.

Ashley Moody, Attorney General Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent, State of Florida.

Madison Weiss, Winter Springs, pro se.

WALLIS, J.,

3 defendant the opportunity to present evidence of excusing or mitigating circumstances."). In addition, the trial court failed to provide a recital of the facts on which it based the adjudication of guilt. See Fla. R. Crim. P. 3.830(c) (requiring recital of facts on which adjudication of guilt is based). Accordingly, we grant the Petition for Emergency Writ of Habeas Corpus, vacate the Order of Contempt, and remand.

GRANT PETITION, VACATE ORDER, AND REMAND.

SASSO, J., concurs. TRAVER, J., concurs and concurs specially with opinion.

4

Case No. 5D22-414

LT Case Nos. 2021-DR-001655

2022-MM-000483-A

TRAVER, J., concurring specially.

I concur with the majority opinion. Petitioner’s failure to enroll in or complete a batterer’s intervention program (“BIP”) occurred outside the trial court’s presence, and the trial court did not afford Petitioner mandatory due process safeguards. Accordingly, criminal contempt sanctions were unavailable. I write to address the trial court’s apparent frustration with Petitioner’s non-compliance with its BIP order. Following entry of an injunction, the trial court set four different status hearings to monitor Petitioner’s progress in BIP, which is a 29-week program designed to hold perpetrators accountable for their acts and to protect victims and children. See §§ 741.32, 741.325(1), Fla. Stat. (2021). One status hearing got rescheduled, and Petitioner failed to appear at another. A BIP provider discharged Petitioner for excessive absences over this time. Although the trial court ultimately punished Petitioner for failing to fulfill the trial court’s BIP directive, it initially appears the trial court was attempting to coerce him to enroll in and complete the course.

5 Every court has the power to punish contempts against it, whether direct or indirect. § 38.22, Fla. Stat. (2021). The purpose of criminal contempt is to punish, while civil contempt is to obtain compliance with a prior order. See Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla. 1985). If the trial court wanted Petitioner to comply with its BIP directive, indirect civil contempt proceedings would have provided a more appropriate framework. See id. It appears the trial court may have recognized this; it issued an order to show cause that threatened both civil and criminal contempt penalties. Indirect civil contempt proceedings have procedural requirements. As an initial matter, a trial court cannot hold a party in indirect civil contempt if the trial court’s underlying order is not “sufficiently explicit or precise to put a party on notice of exactly what it must or must not do.” See Wilcoxon v. Moller, 132 So. 3d 281, 286–87 (Fla. 4th DCA 2014). These proceedings also require basic due process protections like proper notice and time to prepare. See Baldwin v. Baldwin, 204 So. 3d 565, 567 (Fla. 5th DCA 2016). Any judgment of civil contempt resulting in incarceration must also include a purge provision. See Bowen, 471 So. 2d at 1277; Dep’t of Child. & Fams. v. R.H., 819 So. 2d 858, 862 (Fla. 5th DCA 2002). A purge provision provides the contemnor the means to eliminate his sanction

6 through compliance, or as commonly stated, the key to his jail cell. See Bowen, 471 So. 2d at 1277. Furthermore, the trial court must find the contemnor willfully violated the subject order, and that he has the ability to comply with the purge provision. See id. at 1279. A written order memorializing these findings is required. See Grant v. Kopp, 27 So. 3d 190, 190 (Fla. 5th DCA 2010). The majority’s opinion does not prevent the trial court from ensuring that Petitioner follows all aspects of its final judgment, including enrollment in, and completion of, BIP. But if the trial court elects to pursue contempt proceedings, it must follow appropriate due process safeguards, no matter what form of contempt it seeks to impose. Finally, I would note that the threat of contempt alone is often sufficient to obviate a contempt proceeding. Indeed, the trial court’s use of status hearings to monitor Petitioner’s compliance, along with its order to show cause, apparently worked. Petitioner had re-enrolled in a class when the trial court adjudged him in contempt. Nothing would have precluded the trial court from setting a short status date and advising Petitioner of potential sanctions for failure to comply in the future.