final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No.
Haughwout, Public Defender, and Jessica A. De Vera, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for
case involves two adjudications of direct criminal contempt
stemming from profane and rude comments made by the Appellant
during a change of plea hearing. Appellant raises four
challenges to his adjudications and sentences: (1) he lacked
the necessary intent for his first contempt charge; (2) his
two charges should have been one charge because they were
part of a continuous series of events; (3) the trial court
erred by not strictly following the procedures of Florida
Rule of Criminal Procedure 3.830; and (4) the trial court
erred in imposing various fees and costs. As explained below,
we find merit in all but the first challenge.
Appellant's stream of profanity, and especially a vulgar
comment referring to "disqualifying" the court,
were sufficient to show an intent to "embarrass, hinder,
or obstruct the court" or to "lessen its authority
or its dignity." Berman v. State, 751 So.2d
612, 614 (Fla. 4th DCA 1999) (quoting Schenck v.
State, 645 So.2d 71, 73 (Fla. 4th DCA 1994)).
Appellant's first argument is therefore without merit.
Appellant's second contempt charge was based on what
appears from the transcript to be a mocking statement toward
the trial judge, asking if he "fe[lt] better" after
sentencing Appellant for the first contempt charge. This
statement was not sufficiently separate from the original
stream of profanity to merit a second contempt charge.
See Lundy v. State, 596 So.2d 1167, 1168 (Fla. 4th
DCA 1992) (describing how multiple instances of contempt can
be "continuous" and therefore subject to only one
sanction), receded from on other grounds in Gibbs v.
State, 676 So.2d 1001 (Fla. 4th DCA 1996). We find the
interaction between Appellant and the trial court in this
instance to be materially indistinguishable from that
described in B.M. v. State, 523 So.2d 1185 (Fla. 2d
DCA 1988). In B.M., the defendant and the judge
"engaged in a continuous episode of sparring, " as
compared with the defendant committing "temporally
distinct episodes of contumacious conduct." Id.
at 1186 (quoting Tenorio v. State, 462 So.2d 880,
881 (Fla. 2d DCA 1985)). The "continuous episode"
involved the defendant reacting to the judge's imposition
of a first contempt charge by sticking out his tongue.
Id. at 1185-86. Here, Appellant reacted to his first
contempt charge by mocking and/or questioning the judge's
intentions for the sentence. In both cases, the
defendant/appellant engaged in a verbal sparring match with
the court, was found to be in contempt, and immediately
reacted in a way further intended to lessen the court's
authority. We, like the Second District in B.M.,
hold that Appellant's attempt to simply get the last word
into the argument is sufficiently continuous with the
original contempt charge such that only a single charge was
appropriate. Therefore, we reverse
Appellant's second contempt charge in its entirety.
next issue relates to the trial court's failure to
strictly follow the procedures of Florida Rule of Criminal
Procedure 3.830. Such a failure constitutes fundamental
error. See A.W. v. State, 137 So.3d 521, 522 (Fla.
4th DCA 2014) (holding a trial court commits fundamental
error by failing to follow Florida Rule of Juvenile Procedure
8.150, the juvenile rule equivalent of Florida Rule of
Criminal Procedure 3.830); see also Peters v. State,
626 So.2d 1048, 1050 (Fla. 4th DCA 1993) (requiring
"[s]crupulous compliance" with Rule 3.830). The
State in this case concedes that the trial court failed to
allow Appellant the opportunity to present evidence in his
defense, instead asking only "why shouldn't I hold
you in direct contempt right now?" See A.W.,
137 So.3d at 523 (holding that near-identical phrasing was
insufficient). The State also concedes that the trial court
erred by not providing a recital of the facts supporting the
adjudication of guilt. See id. (references to
"his statements, demeanor, and behavior" are
insufficient); see also Johnson v. State, 584 So.2d
95, 96 (Fla. 1st DCA 1991) (holding that the attachment of a
transcript, which the court apparently tried but failed to do
here, is insufficient). Appellant argues that this error
should result in the complete reversal of his charge, whereas
the State argues that a new hearing is the appropriate
remedy. The State is correct. The proper remedy for a trial
court's failure to strictly adhere to the requirements of
Rule 3.830 is a new hearing at which the rule will be
followed. Golant v. State, 202 So.3d 946, 949 (Fla.
4th DCA 2016).
we agree with Appellant and with the State's concession
that the statutes and rules supporting the fees and costs
imposed by the trial court do not apply to this particular
case. Following the hearing required under the previous
paragraph, the trial court shall refrain from imposing any of
the costs imposed in its previous judgment.
and remanded with instructions.
Warner, Levine and Forst, JJ., concur.