FRANK J. CASSIDY, APPELLANT,
v.
TYI CASSIDY, A/K/A TYI O'CONNOR, APPELLEE
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Frank Cassidy appealed a six-month contempt sentence imposed by a trial judge after Cassidy made contemptuous statements directed at that same judge. The appellate court affirmed the contempt adjudication but reversed and remanded for resentencing, finding the original sentence unduly severe.
The court affirmed the contempt adjudication, holding that while it is preferable for an impartial judge to preside over contempt hearings, no rule requires this practice, and the trial judge did not err in presiding. The statements were not privileged because they were made by a party to litigation without following proper procedure such as an affidavit of disqualification.
“it is better for the judge who finds himself wronged to set the hearing upon the citation before another judge”
Establishes the preferred practice that an impartial judge should preside, though not a mandatory rule
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Join FLexlaw to unlock all legal intelligenceCassidy made contemptuous statements directed at a judge during a court hearing conducted pursuant to Florida Rules of Civil Procedure. The judge imme…
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Frank J. Cassidy, appellant, was sentenced to six months in the Dade County Jail after having been adjudged to have been in criminal contempt of the Circuit Court of the Eleventh Judicial Circuit of Florida. His appeal presents two points: (1) the court erred by failing to accord the appellant the fundamental right of an adjudication by an impartial judge, and (2) the court erred in holding that the contemptuous statements uttered by the defendant were not privileged.
The statements made by the defendant are without a doubt contemptuous, unless privileged, and we need not repeat them here. Nevertheless the statements may well be those of a person who was under great pressure and conflict and who was not fully *650cognizant of their impact. We make this comment to indicate the basis for our conclusion regarding the sentence-—not as an excuse for the appellant.
Appellant’s first point is essentially an argument that the judge against whom the statements were directed should not act as trial judge upon the citation for contempt. It has been pointed out that it is better for the judge who finds himself wronged to set the hearing upon the citation before another judge. See Mr. Justice Frankfurter’s dissenting opinion in Sacher v. United States, 343 U.S. 1, 23, 72 S.Ct. 451, 96 L.Ed. 717, 731 (1952); and his opinion for the majority in Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954). However, we know of no rule which requires this practice. See State ex rel. Giblin v. Sullivan, 157 Fla. 496, 26 So.2d 509 (1946); and Clark, Criminal Contempt Procedure in Florida—Proposals, 18 U.Fla.L.Rev. 78 (1965).
In the instant case, the contemptuous statements were related in the presence of the judge during a hearing which was conducted pursuant to Rules 1.31(a) and 1.40, Fla.R.Civ.P., 30 F.S.A. The appellant admitted that he had made the statements. At that time, the trial judge expressed his intention to hold the defendant in contempt and to impose a sentence of sixty days in the County Jail, but no final order was entered. A citation was made and served for the subsequent hearing at which the six months sentence was imposed. We find no error under appellant’s first point.
Appellant’s second point is addressed to a claim of privilege for the statements. The statements made by the appellant, a party to litigation, were such as to impugn the integrity of the judicial process, and they were not made pursuant to any affidavit of disqualification or other process requiring the making of the statements. We hold that the statements were not privileged. See State ex rel. Giblin v. Sullivan, 157 Fla. 496, 26 So.2d 509 (1946).
In the instant case, we have reached the conclusion that the sentence is unduly severe because there is no indication in the record that the defendant fully appreciated the possible relationship of his conduct to the administration of justice. Cf., Neering v. State, Fla.App.1962, 141 So.2d 615. Therefore, the judgment of contempt is reversed as to the sentence imposed, and the cause is remanded for the imposition of a sentence not to exceed two months in the County Jail.
Affirmed as to the adjudication, reversed as to the sentence, and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Forbes v. State, 933 So. 2d 706 (Fla. 4th DCA 2006)…ng it for imposition of a new sentence not to exceed six months because there was "no indication in the record that the defendant fully appreciated the possible relation of his conduct to the administration of justice”); see also Cassidy v. Cassidy, 181 So. 2d 649, 649-50 (Fla. 3d DCA 1966) (agreeing with the trial court’s findings that the defendant made contemptuous statements in the trial judge’s presence, but reversing the six-month jail sentence as unduly severe because the "the statements may well be th…1 / 2
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Bumgarner v. State, 245 So. 2d 635 (Fla. 4th DCA 1971)…te court where the same appears to be, as in this case, reasonably supported by the record. State ex rel. Giblin v. Sullivan, 1946, 157 Fla. 496, 26 So. 2d 509, 516. The defendant cites Neering v. State supra, and Cassidy v. Cassidy, Fla.App. 1966, 181 So. 2d 649, as authority for his assertion that the penalty imposed in this case was too severe. Each case must be considered in relation to its own facts. Neither of the cases cited by the appellant involved an abuse of Rule 1.850, CrPR, and, thus, are so fac…
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Scott v. Judge Charles Anderson, 405 So. 2d 228 (Fla. 1st DCA 1981)…cause of this omission respondent urges, and we think erroneously, that if the contempt charged fits into the category of “direct criminal contempt” to which Rule 3.830 is applicable there is no requirement of disqualification.8 Cassidy v. Cassidy, 181 So. 2d 649 (Fla. 3rd DCA 1966), seems to support respondent’s position. There a defendant was held in contempt for statements made during a hearing. On appeal, he contended, among other things, that he was entitled to a hearing before another judge. In rejecti…
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
- Offutt v. United States, 348 U.S. 11 (U.S. 1954)
- Sacher v. United States, 343 U.S. 1 (U.S. 1952)
- State v. Sullivan, 157 Fla. 496 (Fla. 1946)
- Crown v. Coleman, 157 Fla. 463 (Fla. 1946)
- Neering v. State, 141 So. 2d 615 (Fla. 1st DCA 1962)