NEIL STUDNICK, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Neil Studnick was convicted of indirect criminal contempt for failing to appear as a witness pursuant to a subpoena in another case. The Florida District Court of Appeal affirmed the contempt conviction but reduced his sentence from 10 days to 1 day in county jail, finding that his reliance on attorney advice should have been considered in mitigation.
The court affirmed the contempt conviction, holding that Studnick waived any defects in the subpoena by failing to file a motion to quash. However, the court reduced the sentence from 10 days to 1 day in county jail because Studnick's reliance on attorney advice should have been considered as mitigation of punishment.
[1] A defendant waives defects in a subpoena or its service by failing to file a motion to quash.
[2] Reliance on attorney's advice may be considered in mitigation of punishment for contempt.
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“If Studnick and/or his counsel believed that the subpoena or its service was defective in any manner, it was incumbent upon them to file a motion to quash and set aside the subpoena. Having failed to file such a motion, Studnick waived any defects and could not be heard on this point at a later date”
Establishes that failure to file a motion to quash waives defects in subpoena service, preventing later challenge at contempt hearing or appeal
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn April 20, 1976, Studnick received a subpoena to appear as a witness on April 26, 1976 in State v. Hernandez. The subpoena was marked 'insolvent' an…
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[*809] PER CURIAM.
Defendant, Neil Studnick, seeks reversal of a conviction for indirect criminal contempt for failure to obey a witness subpoena.
On April 20, 1976 an “insolvent” subpoena was issued to defendant-appellant, Neil Studnick, to appear on April 26, 1976 as a witness in the case of State v. Hernandez. Although the return on the subpoena specified that he was personally served, Studnick alleged he received it by mail. Upon receipt of the subpoena, Studnick immediately contacted his attorney who advised him not to appear due to the fact that there was no check with the subpoena and also it did not afford reasonable notice in reference to the time he (Studnick) had to appear. Studnick did not appear and subsequently a rule to show cause was issued as to why he should not be held in contempt for his failure to appear. A hearing on the rule to show cause was held on May 7,1976 and the trial judge then determined that Studnick was in indirect contempt of court because of his deliberate and unjustified failure to obey a subpoena duly served upon him. Thereupon, the judge sentenced him to 10 days in the county jail. Studnick appeals and contends that the judge erred in adjudicating him guilty of indirect contempt when he was not personally served with the subpoena, and on advice of counsel did not appear as a witness at the trial. We cannot agree.
If Studnick and/or his counsel believed that the subpoena or its service was defective in any manner, it was incumbent upon them to file a motion to quash and set aside the subpoena. Having failed to file such a motion, Studnick waived any defects and could not be heard on this point at a later date (i. e., either at the contempt hearing or on his appeal). See Coleman v. State, 134 Fla. 802, 184 Sol 334 (1938).
Nevertheless, the fact that Studnick relied upon the advice of his attorney should have been taken into consideration by the trial judge in mitigation of the punishment. See 17 C.J.S. Contempt § 38 (1963). We deem the sentence of 10 days in the , county jail to be too severe under the circumstances, and hereby reduce the sentence to one day in the county jail.
It is so ordered.