final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Nicholas R. Lopane, Judge; L.T. Case No.
Guillermo J. Farinas, Palm Beach, for appellant.
K. Wells of Wells Law Firm, LLC, Miami Lakes, for appellee.
father in a custody-related dispute appeals from the circuit
court's direct criminal contempt order and sentence
entered after the father's repeated uncontrollable
interruptions and outbursts during a hearing. The father
argues that the circuit court did not comply with Florida
Rule of Criminal Procedure 3.830's requirements before
entering the order and sentence. We are compelled to agree
with the father and reverse.
A criminal contempt may be punished summarily if the court
saw or heard the conduct constituting the contempt committed
in the actual presence of the court. The judgment of guilt of
contempt shall include a recital of those facts on which the
adjudication of guilt is based. Prior to the adjudication
of guilt the judge shall inform the defendant of the
accusation against the defendant and inquire as to whether
the defendant has any cause to show why he or she should not
be adjudged guilty of contempt by the court and sentenced
therefor. The defendant shall be given the opportunity to
present evidence of excusing or mitigating
circumstances. The judgment shall be signed by the judge
and entered of record. Sentence shall be pronounced in open
Fla. R. Crim. P. 3.830 (emphasis added).
review of the hearing transcript indicates that the circuit
court did not inquire as to whether the father had any cause
to show why he should not have been adjudged guilty of
contempt by the circuit court and sentenced therefor. The
circuit court also did not give the father the opportunity to
present evidence of excusing or mitigating circumstances.
the circuit court's noncompliance with rule 3.830's
mandatory inquiries, we are compelled to reverse the direct
criminal contempt adjudication. See Swain v. State,
226 So.3d 250, 251 (Fla. 4th DCA 2017) (a trial court's
failure to strictly follow the procedures of Florida Rule of
Criminal Procedure 3.830 constitutes fundamental error).
circuit court chooses to proceed with its direct criminal
contempt charge against the father, then the circuit court
must hold a new hearing to comply with rule 3.830's
mandatory inquiries. See id. at 252 ("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.").
given that the father already has served his sentence, we
recognize that the circuit court, rather than engaging in a
new hearing, has the option of entering an order withdrawing
its direct criminal contempt charge and vacate the direct
criminal contempt adjudication. Neither the circuit court nor
the parties should construe this opinion as preferring one
option over the other.
final note. As three former trial judges reviewing this case,
we fully understand the circuit court's difficult
predicament in a situation like this. As the circuit
court's judgment indicates, during the father's final
outburst, the father "stood up and approached [the
opposing party and counsel] in an aggressive manner[, ]
causing the court to fear imminent violence," leading
the circuit court to order deputies to physically remove the
father from the courtroom. ...