EDWARD EARL SPELLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edward Speller appeals his convictions for breaking and entering with intent to commit a misdemeanor and direct contempt of court. The court affirms the breaking and entering conviction but reverses the contempt conviction because the trial court failed to follow the mandatory procedural requirements for contempt adjudication under Florida law.
The trial court's contempt conviction and sentence must be reversed because it failed to follow the mandatory procedures of Rule 3.830, CrPR. The appellant was not properly informed of the accusation, was not given an opportunity to show cause why he should not be held guilty of contempt, and was not afforded an opportunity to present evidence of excusing or mitigating circumstances. The breaking and entering conviction is affirmed.
[1] A conviction for direct contempt of court requires the judge to inform the defendant of the accusation, inquire if the defendant has cause to show why they should not be…
[2] A judgment of guilt for direct contempt must include a recital of the facts upon which the adjudication is based.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Rule 3.830, CrPR (then numbered 1.830), requires: (1) the judge must inform the defendant of the accusation and inquire whether defendant has any cause to show why he should not be held guilty of contempt; (2) the defendant must be given the opportunity to present evidence of excusing or mitigating circumstances; (3) the judgment of guilt must include a recital of the facts upon which the adjudication is based.”
Establishes the mandatory three-part procedural requirements for contempt adjudication that the trial court failed to follow
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Join FLexlaw to unlock all legal intelligenceSpeller was convicted of breaking and entering with intent to commit a misdemeanor. At sentencing on that charge, a bailiff attempted to lead Speller …
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McNULTY, Chief Judge.
These consolidated Baggett1 appeals seek reversal of appellant’s convictions of breaking and entering with intent to commit a misdemeanor and contempt of court respectively. We find no reversible error in appellant’s conviction and sentencing on the breaking and entering charge and we accordingly affirm. However, because the trial court has failed to follow the procedures mandated by Rule 3.830, CrPR, in convicting and sentencing appellant for direct contempt, we reverse the judgment and sentence on that charge.
The factual basis for the direct contempt conviction arose at the time of the sentencing in open court on the aforesaid breaking and entering charge. Immediately upon the entry of the sentence on that charge a bailiff apparently sought to lead appellant Speller away from the bench, at which point Speller turned on the bailiff and assaulted him. After the break-up of the ensuing melee appellant stated to the court, “He grabbed me. He grabbed me, your Honor.” The judge forthwith found the appellant guilty of direct contempt of court and imposed a sentence of one year at hard labor in the county jail.
As we stated in Manning v. State,2 Rule 3.830, CrPR (then numbered 1.830), requires :
“(1) the judge must inform the defendant of the accusation and inquire wheth er defendant has any cause to show why he should not be held guilty of contempt;
(2) the defendant must be given the opportunity to present evidence of excusing or mitigating circumstances;
(3) the judgment of guilt must include a recital of the facts upon which the adjudication is based.”
Appellant contends he was not afforded the benefits of the rule in that he was not informed of the nature of the contempt, he was not given an opportunity to show cause why he should not be held guilty thereof and he was not given an opportunity to present evidence of excusing or mitigating circumstances. The state counters that by exclaiming, “He grabbed me. He grabbed me, your Honor,” appellant acknowledged that he knew precisely why he was being held in contempt, that he had no defense thereto and that he was presenting the substance of the exclamation as an excuse or as mitigating circumstances. We cannot agree.
Given an opportunity for further and full reflection, perhaps indeed the advice of counsel, any number of excusing or mitigating circumstances could have been advanced by appellant even if it can be said that he could not otherwise have set up any absolute defense. The court should have more meticulously complied with the rule.
Accordingly, the judgment and sentence entered on the charge of direct contempt should be, and they are hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith. After remand we are certain the trial court will note the caveat in Bloom v. Illinois 3 and in Aaron v. State;4 and if, upon conviction, the court intends to impose sentence in excess of six months he will no doubt afford appellant an opportunity to opt for a jury trial. We also note that since the repeal of § 922.05(2), F.S.,5 there is no authority for imposing a sentence “at hard labor.”
Affirmed in part, reversed in part.
HOBSON, J., and LEE, J. CAIL, Associate Judge, concur. . Baggett v. Wainwright (Fla.1969), 229 So. 2d 239.
. (Fla.App.2d, 1970), 234 So. 2d 16. See also Berman v. State (Fla.App.3d, 1971), 253 So. 2d 144.
. 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).
. (Fla.1973), 284 So. 2d 673.
.Repealed by ch. 70-339, § 180, Laws of Fla. 1970.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (36 total)
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McDONALD v. State, 321 So. 2d 453 (Fla. 4th DCA 1975)…testify- However, the court acted improperly in failing to follow the requirements set forth in Rule 3.830, RCrP.1 [*458] Manning v. State, Fla.App.1970, 234 So. 2d 16; Berman v. State, Fla.App.1971, 253 So. 2d 144; Speller v. State, Fla.App.1974, 305 So. 2d 231; Krathen v. State, Fla.App.1975, 310 So. 2d 381; cf. Miller v. State, Fla.App.1975, 305 So. 2d 826. Moreover, we hold that the trial court erred in finding appellant guilty of fifteen contempts rather than one. We are of the opinion that when a witn…
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Martinez v. State, 339 So. 2d 1133 (Fla. 2d DCA 1976)…30 So. 2d 244 (Fla.2d DCA1976). Likewise, there are statements in at least three other cases which seem to sanction a sentence of up to six months for contempt without a jury trial. Jacobs v. State, 327 So. 2d 896 (Fla.3d DCA1976); Speller v. State, 305 So. 2d 231 (Fla.2d DCA1974); Salem v. State, 305 So. 2d 23 (Fla.3d DCA1974). Can it be said that the Florida Supreme Court was intentionally reducing the permissible sentence for conviction of criminal contempt without a jury by one day? We think not. The Aar…
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McCLAIN v. State, 356 So. 2d 1256 (Fla. 2d DCA 1978)…es (1975). Smith v. State, 310 So. 2d 770 (Fla. 2d DCA 1975). Moreover, the phrase “at hard labor” in the sentence is improper because no existing state statute provides for imprisonment at hard labor as a sentence for any offense. Speller v. State, 305 So. 2d 231 (Fla. 2d DCA 1974). Appellant need not be present at resentencing. BOARDMAN, C. J., and OTT, J., concur.…
Previewing 3 of 36 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bloom v. Illinois, 391 U.S. 194 (U.S. 1968)
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- Aaron v. State, 284 So. 2d 673 (Fla. 1973)
- Manning v. State, 234 So. 2d 16 (Fla. 2d DCA 1970)
- Berman v. State, 253 So. 2d 144 (Fla. 3d DCA 1971)