JOSEPH C. AIELLO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Aiello was sentenced to 120 days in jail for criminal contempt after refusing to answer questions during an investigation. The court reversed, holding that Aiello was effectively denied his opportunity to purge the contempt when the State declined to call him as a witness at trial, despite instructions that he could purge by testifying.
A contempt order must be reversed and the defendant discharged when he is denied the opportunity to purge through no fault of his own. The court held that Aiello should be discharged because he was unable to comply with the purge requirement due to the State's refusal to call him as a witness.
[1] A contempt order is subject to review when the contemnor is denied an opportunity to purge the contempt through no fault of their own.
[2] A trial court may proceed on its own motion to hold a party in contempt when the judge is personally involved in the conduct of the party.
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Establishes that the State's refusal to call Aiello as a witness denied him the opportunity to satisfy the purge condition.
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Join FLexlaw to unlock all legal intelligenceAiello was subpoenaed to answer questions from an Assistant State Attorney during a criminal investigation. He refused to reply to the questions. A co…
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GREEN, OLIVER L., Jr., Associate Judge.
The appellant, Joseph C. Aiello, appeals an order of contempt sentencing him to serve 120 days in the Broward County Jail for refusal to reply to questions propounded by an Assistant State Attorney, pursuant to subpoena and in the course of an investigation regarding a pending criminal trial. The order from which this appeal arises does not contain purge provisions; however the transcript on appeal establishes that the appellant was advised he would be permitted to purge himself by testifying at the subject trial which was later presided over by a different judge.
The appellant was incarcerated upon entry of the order being appealed. He was still in custody when the trial began. During the course of the trial appellant was brought before the trial judge. He offered to testify on behalf of the State at that time and thereby purge himself of his contempt. There was some discussion on the record by the prosecuting attorney as to the wisdom of the appellant’s being called as a witness by the State. The end result was that the State declined to call the appellant as a witness. The appellant was thereby denied his opportunity to purge.
There was an exchange between counsel for the appellant and the judge presiding over the subject trial, which establishes to our satisfaction that the opportunity to purge was effectively denied the appellant. We hold that the order of contempt herein appealed from is to be considered in light of the instructions by the judge below to the appellant that he would be permitted to purge himself of said order by his testimony. We further hold that the appellant should be discharged from execution of the sentence provided in the order of contempt by reason of his inability to comply through no fault of his own.
We pause to mention that the original petition was not in compliance with Fla.R.Crim.P. 3.840, as the same failed to contain an affidavit by a “person having knowledge of the facts.” Ex parte Crews, 127 Fla. 381, 173 So. 275 (1937); Phillips v. State, 147 So. 2d 163 (Fla.3d DCA 1962).
We hold that this failure to proceed in accordance with the Rule does not constitute a fatal defect inasmuch as the transcript reflects an exchange between the appellant and the judge below wherein the appellant stated in no uncertain terms that he would not reply to questions asked by the State Attorney in the attempted investigation. The judge then became personally involved in the conduct of the appellant and, of course, was thereby authorized to proceed “on his own motion.” Rule 3.840, supra. Additionally, we have considered Fla.R.Crim.P. 3.080 and find the same to be inapplicable to proceedings under Rule 3.840, supra. Rule 3.080, supra, provides, in pertinent part, as follows:
“ . . . Except when otherwise specifically provided by these rules, pleadings as such need not be verified or accompanied by affidavit. . . .”
For the reasons herein stated, the cause is remanded for further proceedings in accordance with our directions that the appellant be deemed to have satisfied the purge requirements of the order of contempt.
REVERSED AND REMANDED with directions that the appellant be discharged from the order of contempt.
MAGER, C. J., and ALDERMAN, J., concur.
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Starchk v. Wittenberg, 411 So. 2d 1000 (Fla. 5th DCA 1982)…appellant is DISCHARGED. COBB and SHARP, JJ., concur. . As to differences between civil and criminal contempt see Carter v. State, 409 So. 2d 127 (Fla. 5th DCA 1982). . See, e.g., Ex parte Biggers, 85 Fla. 322, 95 So. 763 (1923); Aiello v. State, 338 So. 2d 1101 (Fla. 4th DCA 1976); Phillips v. State, 147 So. 2d 163 (Fla. 3d DCA 1962).…
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Hope v. State, 449 So. 2d 1315 (Fla. 2d DCA 1984)…v. State, 392 So. 2d 321 (Fla. 1st DCA 1981), the acts were in fact committed in the presence of the trial judge. Baumgartner v. Joughin, 107 Fla. 858, 143 So. 436 (1932); Starchk v. Wittenberg, 411 So. 2d 1000 (Fla. 1st DCA 1982); Aiello v. State, 338 So. 2d 1101 (Fla. 4th DCA 1976); McDonald at 457. While the assistant state attorney “assured” the trial judge at his specific request that the matters he recited in support of the order to show cause “actually transpired,” such recitation was merely superfluou…
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In re Investigative Subpoena of Linda Getty, 427 So. 2d 380 (Fla. 4th DCA 1983)…8 So. 2d 40 (Fla. 4th DCA 1976), wherein we recognized that civil and criminal penalties could be imposed for the same act of contempt, following Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957). In the second, Aiello v. State, 338 So. 2d 1101 (Fla. 4th DCA 1976), the trial court’s order, sentencing appellant to serve 120 days in jail, [*382] contained no purgative clause; but the transcript of the hearing, as in this case, revealed the trial judge’s apparent intention to include it. Our…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ex parte Crews, 127 Fla. 381 (Fla. 1937)
- Phillips v. State, 147 So. 2d 163 (Fla. 3d DCA 1962)