DANNY HAROLD GOODEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction for indirect criminal contempt is affirmed because he failed to demonstrate the injunction order was impossible to obey, but his sentence is reversed because the trial court failed to permit mitigation evidence as required by Florida Rule of Criminal Procedure 3.840(g).
A defendant convicted of indirect criminal contempt cannot defend by retrying the underlying action, and an injunction order remains enforceable despite potentially erroneous property descriptions, but a sentence must be reversed if the trial court fails to allow mitigation evidence.
[1] An injunction order remains enforceable despite potentially erroneous property descriptions when the order has become final, and a defendant cannot defend against indirec…
[2] Failure to permit a defendant to present evidence in mitigation at sentencing, as authorized by Florida Rule of Criminal Procedure 3.840(g), constitutes fundamental error…
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Court addressing whether an erroneous property description in an injunction renders it unenforceable
Appellant was convicted of indirect criminal contempt for violating an injunction that restrained him from coming onto land described as running to an…
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BROWNING, J.
Appellant seeks review of his judgment and sentence for indirect criminal contempt. We affirm Appellant’s conviction because he failed to show it was impossible to obey the order and in defense relied primarily on an attempt to retry the original action. See Shadow Lakes Woods, Inc. v. Schneider, 414 So. 2d 3, 4 (Fla. 5th DCA 1982) (quoting Bird v. Johnson, 234 Ind. 555, 130 N.E. 2d 29, 31 (1955)). The language of the order violated by Appellant restrained him from eom-ing onto the land described as running to and along “the waters’ edge,” yet, as the evidence shows, he was twice on land past the waters’ edge. Although the phrase “the waters’ edge” may be an erroneous description of the metes and bounds of the property, the order of injunction is, nonetheless, enforceable. Cf. E. Shores Sales Co. v. City of N. Miami Beach, 363 So. 2d 321 (Fla.1978) (holding that even erroneous rulings in a decree that had become final could not be attacked collaterally).
Appellant’s claim that his sentence is illegal was not preserved. However, we reverse the sentence because the trial court did not permit Appellant to present evidence in mitigation, as authorized by Florida Rule of Criminal Procedure 3.840(g). Failure to follow this rule is fundamental error. See Garrett v. State, 876 So. 2d 24, 25-26 (Fla. 1st DCA 2004). Accordingly, we AFFIRM the conviction, REVERSE the sentence, and REMAND for proceedings consistent with this opinion.
ALLEN and PADOVANO, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Garrett v. State, 876 So. 2d 24 (Fla. 1st DCA 2004)
- Shadow Lakes Woods, Inc. v. Schneider, 414 So. 2d 3 (Fla. 5th DCA 1982)
- E. Shores Sales Co. v. City OF N. Miami Beach, 363 So. 2d 321 (Fla. 1978)