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Brown v. State

Florida Court of Appeals, Second District

September 15, 2017

ULYSSES L. BROWN, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Hillsborough County; Chet A. Tharpe, Judge.

          Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appellee.

          KHOUZAM, Judge.

         Ulysses L. Brown appeals his judgment and sentence for direct criminal contempt. The State concedes, and we agree, that the trial court erred by finding Mr. Brown in direct criminal contempt. Accordingly, we reverse the judgment and sentence and remand with directions to vacate Mr. Brown's conviction.

         On November 16, 2015, the State charged Mr. Brown with third-degree felony possession of cocaine, first-degree misdemeanor possession of marijuana, and possession of drug paraphernalia. His case was scheduled for trial on March 21, 2016. When the case was called that morning, Mr. Brown's counsel asked the court to pass the case so he could discuss with Mr. Brown the possibility of a plea agreement. The prosecutor advised the trial court that she would seek a continuance if she and Mr. Brown could not reach an agreement. When the case was recalled, Mr. Brown's counsel told the court that he had not had an opportunity to speak with Mr. Brown about a potential counteroffer but that it was unlikely the case would be resolved that morning.

         The prosecutor asked to approach the bench, where the following discussion occurred:

THE PROSECUTOR: Your Honor, it came to my attention that Mr. Brown is too impaired this morning to have any meaningful conversation with his attorney about a counteroffer or a resolution.
THE COURT: Impaired by what?
DEFENSE COUNSEL: I don't know. I just have reservations about entering into any type of plea agreement this morning.
THE COURT: Do you smell alcohol on him? Do you smell alcohol on him?
DEFENSE COUNSEL: Your Honor, I smell alcohol in the general vicinity ...

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