FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
for Certiorari Review of Order from the Circuit Court for
Brevard County, Lisa Davidson, Judge, John Griesbaum, Judge,
Jeffrey Mahl, Judge.
D. Sommerville, of Law Offices of Thomas D. Sommerville,
P.A., Orlando, for Petitioner.
Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock
McGuigan, Assistant Attorney General, Daytona Beach, for
Robert Johnson ("Petitioner"), seeks second tier
certiorari review of an opinion from the appellate division
of the circuit court, in which the circuit court affirmed a
judgment and sentence for indirect criminal contempt. The
appellate division of the circuit court did not have
jurisdiction to hear the appeal and should have transferred
the appeal to this court. Therefore, we grant the petition,
quash the opinion of the circuit court, and remand for
case stems from a divorce proceeding between Petitioner and
his former wife, Lisa Lynne Bernick ("Former
Wife"). In August 2013, the circuit court entered a
final judgment of dissolution of marriage, which included a
timesharing agreement. In November 2014, the circuit court
issued an order for Petitioner to show cause why he should
not be held in indirect criminal contempt for failing, on one
occasion, to return the children either to their school or to
Former Wife in accordance with the timesharing agreement and
final judgment. In April 2015, the court held a hearing and
found Petitioner guilty of indirect criminal contempt. In
November 2015, he was sentenced to forty-five days probation
with a special condition of forty-five days in jail.
Petitioner appealed to the appellate division of the circuit
court, which issued a per curiam affirmance of the trial
now seeks review of the circuit court's appellate
decision by petitioning for this court to issue a writ of
certiorari. "The district court reviewing the circuit
court's decision is limited to determining whether the
circuit court afforded procedural due process and whether the
court applied the correct law or, stated in other words,
whether the circuit court decision departed from the
essential requirements of law." State v. Kirby,
752 So.2d 36, 37 (Fla. 5th DCA 2000).
Second-tier certiorari is not a second appeal; it is
extraordinarily limited, and narrow in scope. Ordinary legal
errors, or application of the correct law incorrectly under
the facts, are not sufficient grounds for a district court to
grant second-tier certiorari. Second-tier certiorari review
should only be exercised when there has been a violation of a
clearly established principle of law resulting in the
miscarriage of justice.
USAA Cas. Ins. Co. v. Emergency Physicians of Cent.
Fla., 200 So.3d 153, 154 (Fla. 5th DCA 2016) (internal
quotation marks omitted) (internal citations omitted).
not discuss the merits of the petition because a
jurisdictional issue exists that neither party addressed.
Despite the fact that the indirect criminal contempt
proceeding was given a misdemeanor case number, it was not a
county court case; rather, it was a circuit court case
because it arose from a family circuit court matter.
Schabb v. State, 33 So.3d 763 (Fla. 4th DCA 2010),
the State moved in the circuit court for the issuance of an
order to show cause as to why the witness should not be held
in indirect criminal contempt for failing to obey a circuit
court subpoena in a criminal case. 33 So.3d at 764. The order
to show cause was styled as an order from the county court
but it was signed by a circuit court judge. Id. The
case was assigned a misdemeanor case number but was heard
before the circuit court judge who presided over the criminal
case. Id. at 764-65. The court found the witness
guilty of contempt, sentenced her to thirty days in jail, and
placed her on six months of probation. Id. at 765.
The probation order indicated that it was an order of the
county court, but the circuit court judge signed the order as
a circuit court judge. Id.
witness appealed to the appellate division of the circuit
court in the nineteenth circuit. Id. "The
circuit court appellate panel held that it did not have
jurisdiction because the judgment was a circuit court
judgment, even though the trial judge had called it a county
court case." Id. The appellate panel then
transferred the appeal to the Fourth District. Id.
The Fourth District agreed with the circuit court appellate
panel and held as follows:
In sum, [c]ontempt is a common law crime in Florida, which,
although recognized by statute, is not specifically
classified by statute as either a felony or a misdemeanor.
Both the circuit and county courts have jurisdiction to hear
criminal contempts. The contempt in this case arose from a
felony proceeding, a circuit court case. Section 38.22[,
Florida Statutes (2008)] gave the circuit judge jurisdiction
to hear and punish the contempt. The clerk's assignment
of a misdemeanor case number did not affect the status of the
contempt as a circuit court matter over which that court had
jurisdiction. [F]ile numbers are merely an administrative
convenience for the clerk but not a statutory prerequisite
for filing by the parties to the action. Case numbers assist
a clerk in satisfying the statutory duty to keep all papers
filed with the utmost care and ...