final until disposition of timely filed motion for rehearing.
of Original Jurisdiction - Habeas Corpus Lower Tribunal No.
J. Martinez, Public Defender, and Jeffrey Paul DeSousa,
Assistant Public Defender, for petitioner.
Jo Bondi, Attorney General, and Gabrielle Raemy
Charest-Turken, Assistant Attorney General, for respondent
The State of Florida.
SUAREZ, C.J., and EMAS and LOGUE, JJ.
White files this petition for writ of habeas corpus,
following the trial court's entry of a judgment of direct
criminal contempt, sentencing White to seven days in jail. We
grant the petition.
cause pending below is a dependency proceeding involving
White's son, T.D. White is seeking custody of his son
and, during a hearing on April 25, 2017, the trial court
ordered White to submit to a drug test and then to
return to court. White left the courtroom and the court's
bailiff instructed White where to go for the court-ordered
drug test. White did not return to the courtroom, and it was
later discovered that White did not submit to the drug test.
The trial court issued an order directing White to appear in
court two days later (on April 27, 2017) and show cause why
he should not be held in direct criminal contempt for failing
to submit to the court-ordered drug test and for failing to
return to court.
April 27 final hearing, the trial court appointed counsel for
White. Counsel requested additional time to investigate and
prepare a defense for his newly-appointed client. The trial
court denied this request and proceeded to a final hearing,
after which the trial court adjudged White guilty of direct
criminal contempt, took him into custody, and sentenced him
to seven days in the Miami-Dade County jail.
contends that the contempt proceedings below were improperly
prosecuted as a direct criminal contempt rather than an
indirect criminal contempt. This is a significant
distinction, as a defendant subject to indirect criminal
contempt proceedings is accorded a panoply of procedural and
substantive due process safeguards not afforded to a direct
criminal contemnor. See Fla. R. Crim. P.
3.840(a)-(g) (providing, inter alia, that an indirect
criminal contempt proceeding requires: the issuance of a
written order to show cause stating the essential facts
constituting the criminal contempt; the right to be
represented by counsel; a reasonable time for preparation of
a defense after service of the show cause order; an
arraignment on the charge; an opportunity to seek a statement
of particulars or file motions and an answer to the show
cause order; a formal final hearing on the charge; the right
to compulsory process for the attendance of witnesses at that
hearing; and the right to testify in his or her own defense).
By contrast, a direct criminal contempt, which involves
conduct occurring "in the actual presence of the court,
" see Fla. R. Crim. P. 3.830, "may be
punished summarily." Id.
instant case manifestly required that any contempt
proceedings be prosecuted as an indirect, rather than a
direct, criminal contempt. The Florida Supreme Court, in
Plank v. State, 190 So.3d 594, 606 (Fla. 2016),
recently reaffirmed the principle established by the United
States Supreme Court in In re Oliver, 333
U.S. 257 (1948):
In order to be considered direct criminal contempt, all of
the acts underlying the contemptuous conduct must be
committed in open court in the presence of the judge,
"where all of the essential elements of the misconduct
are under the eye of the court [and] are actually observed by
the court." Oliver, 333 U.S. at 275, 68 S.Ct.
499. If the judge needs to rely on statements and testimony
from others regarding their knowledge about the contemptuous
acts, the misconduct is no longer considered direct criminal
contempt because additional testimony or explanation is
necessary. Id. at 275-76, 68 S.Ct. 499. As the
Supreme Court has stressed, "the judge must have
personal knowledge of [the misconduct] acquired by his own
observation of the contemptuous conduct." Id.
at 275, 68 S.Ct. 499. "[K]nowledge acquired from the
testimony of others, or even from the confession of the
accused, would not justify conviction without a trial in
which there was an opportunity for defense."
the State concedes that the trial court erred in prosecuting
this matter as a direct, rather than an indirect, criminal
contempt. We agree, and accordingly grant the
petition, vacate the judgment of direct criminal contempt,
and vacate the sentence imposed upon that judgment. We remand
this cause to ...