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Manzaro v. D'Alessandro

Florida Court of Appeals, Fourth District

October 23, 2019

JOSEPH MANZARO, Appellant,
v.
LINDA D'ALESSANDRO, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Nicholas R. Lopane, Judge; L.T. Case No. FMCE12-000471.

          Guillermo J. Farinas, Palm Beach, for appellant.

          Megan K. Wells of Wells Law Firm, LLC, Miami Lakes, for appellee.

          GERBER, J.

         The 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.

         Rule 3.830 provides:

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 court.

Fla. R. Crim. P. 3.830 (emphasis added).

         Our 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.

         Due to 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).

         If the 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.").

         However, 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.

         One 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. ...


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