Indirect Criminal Contempt
Section 38.22, Florida Statutes, provides: “Every court may punish contempts against it whether such contempts be direct, indirect, or constructive, and in any such proceeding the court shall proceed to hear and determine all questions of law and fact.”
The Florida Supreme Court has defined the term “contempt of court” as “[a]ny act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity.” Ex parte Crews, 173 So. 275, 279 (1937).
In a civil or criminal case, the court itself or the opposing party might make allegations that a court order was violated. Based upon those allegations the trial court might enter an “Order to Show Cause” for indirect criminal contempt for violations of the court’s order.
Unlike civil contempt, which is used to “obtain compliance on the part of a person subject to an order of the court[,] … [t]he purpose of criminal contempt … is to punish. Criminal contempt proceedings are utilized to vindicate the authority of the court or to punish for an intentional violation of an order of the court.” Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla. 1985).
The trial court has the power to conduct a hearing on the Order to Show Cause and impose sanctions including a fine, probation or up to six (6) months of incarceration.
Attorney for Indirect Criminal Contempt in Florida
If you were charged with either direct or indirect criminal contempt in Tampa or the surrounding areas in Tampa Bay, then contact an experienced criminal defense attorney to discuss your case and possible defenses to the charges.
From a formal charging document to an order to show cause, we can help you fight the charges. The attorneys at the Sammis Law Firm represent clients charged with criminal contempt in a variety of settings in both criminal and civil cases.
If an order finding you in indirect criminal contempt has been entered against you, contact us about appealing that order to a higher court.
We fight these cases at the trial level and on appeal throughout the greater Tampa Bay area including Hernando County, Pasco County, Pinellas County, Manatee County, Sarasota County, Hillsborough County, and Polk County, FL.
Call us today to discuss the case at (813) 250-0500.
Procedural Aspects of Indirect Criminal Contempt – Rule 3.840
The indirect criminal contempt process requires that all procedural aspects of the criminal justice process be accorded a defendant. Haeussler v. State, 100 So.3d 732, 734 (Fla. 2d DCA 2012).
The prosecution of indirect criminal contempt is governed by Florida Rule of Criminal Procedure 3.840. Florida courts have held that failure to strictly follow the dictates of that rule is fundamental error.” Sramek v. State, 946 So.2d 1235, 1236 (Fla. 2d DCA 2007).
With regard to the order to show cause, rule 3.840(a) provides, in part, as follows:
The judge, on the judge’s own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court.
The trial court’s failure to strictly comply with Rule 3.840 constitutes fundamental error which requires a reversal of the order finding a person in indirect criminal contempt on appeal to a higher court.
In fact, “greater procedural due process safeguards are accorded when proceedings are for indirect criminal contempt.” Pugliese v. Pugliese, 347 So.2d 422, 425 (Fla. 1977).
Sufficiency of the Show Cause Order
When the contempt proceedings are fundamentally flawed from the start, reversal is required on appeal due to these deficiencies even in the absence of an objection to the trial court regarding the sufficiency of the show cause order. In Hagerman v. Hagerman, 751 So.2d 152, 154 (Fla. 2d DCA 2000), the court acknowledges that “the failure to comply with rule 3.840 is fundamental error and no objection is required.”
To be legally sufficient, the order to show cause must:
- state the essential facts constituting the charged contempt or incorporate by reference the allegations contained in the sworn petition; and
- put the accused on notice that he or she was facing criminal contempt.
Rule 3.840(a) also requires that a reasonable amount of time be provided between the service of the show cause order and the hearing to allow the defendant to prepare a defense.
Arraignment on the Show Cause Order
As required by Rule 3.840, the court must arraign the defendant and advise the defendant of the following at arraignment:
- the allegations against them;
- the right to be represented by counsel;
- the right to testify on his or her own behalf; and
- the right to have witnesses subpoenaed to testify.
In other words, at the hearing, the court must give the person accused notice of their right to counsel, advise the person of the allegations against them, and indicate whether the accused is facing civil or criminal contempt.
The Difference Between Direct Contempt and Indirect Contempt
Florida Rule of Criminal Procedure 3.830 addresses direct criminal contempt and provides, in relevant part:
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.
“The supreme court [has] explained that for conduct 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.’ ” Brown v. State, 226 So.3d 369, 372 (Fla. 2d DCA 2017) (quoting Plank v. State, 190 So.3d 594, 606 (Fla. 2016) ).
“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. (quoting Plank, 190 So.3d at 606).
In other words, “[w]henever a judge must take testimony during a criminal contempt proceeding or rely on additional evidence not directly observed by the trial judge, the proceeding is no longer direct criminal contempt but becomes indirect criminal contempt.” Id.
Indirect Criminal Contempt for Speech
Indirect criminal contempt is conduct occurring outside the presence of the judge which constitutes “a clear and present danger to the orderly administration of justice . . . whether speech constitutes a clear and present danger is measured not by the content of the remark but by the impact on judicial action.” Wasserman v. State, 671 So. 2d 846, 848 (Fla. 2d DCA 1996).
Determining Intent Beyond a Reasonable Doubt
In an indirect criminal contempt charge, there must be proof beyond a reasonable doubt against the accused. Tide v. State, 804 So. 2d 412, 413 (Fla. 4th DCA 2001). As an essential element, “intent” can be inferred from the actions of the accused. Power Line Components, Inc. v. Mil-Spec Components, Inc., 720 So. 2d 546 (Fla. 4th DCA 1998).
“[T]o prove indirect criminal contempt, ‘there must be proof beyond a reasonable doubt that the individual intended to disobey the court.’ ” Tide v. State, 804 So.2d 412, 413 (Fla. 4th DCA 2001) (citation omitted).
“[I]ntent for indirect criminal contempt can be inferred from the actions of the contemnor where it is foreseeable under the circumstances that the contemnor’s conduct would prompt action disruptive of court proceedings.” Milian, 764 So.2d at 862. For example, “courts have long recognized the power to punish persons for criminal contempt when perjury is established.” Forbes v. State, 933 So.2d 706, 711 (Fla. 4th DCA 2006).
Where intent is supported by the facts, the court may conclude that the accused’s behavior was willful and calculated to hinder the orderly functions of the court. Mann v. State, 476 So. 2d 1369, 1374 (Fla. 2d DCA 1985).
Different Types of “Contempt of Court” Proceedings
Contempt of court proceedings can arise in a number of different proceedings including:
- making an inappropriate outcry or other inappropriate conduct while standing in front of the trial court in open court;
- indirect criminal contempt for violating the terms of an injunction for protection;
- indirect criminal contempt of a family law order in a divorce or child custody case; and
- contempt by concealment by a juror during voir dire.
Appeals after a Trial Court’s Order for Indirect Contempt
A trial court’s order of indirect contempt is reviewed for an abuse of discretion. Sandelier v. State, 238 So. 3d 831, 834 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D484a].
Fla. R. Crim. P. 3.840 governs indirect criminal contempt, and it states in relevant part:
A criminal contempt, except as provided in rule 3.830 concerning direct contempts, shall be prosecuted in the following manner:
(d) Arraignment; Hearing. The defendant may be arraigned at the time of the hearing, or prior thereto at the defendant’s request.
A hearing to determine the guilt or innocence of the defendant shall follow a plea of not guilty. The judge may conduct a hearing without assistance of counsel or may be assisted by the prosecuting attorney or by an attorney appointed for that purpose.
The defendant is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and testify in his or her own defense. All issues of law and fact shall be heard and determined by the judge.
Failure to comply with the strict procedural requirements of the rule constitutes fundamental error, and a party’s failure to raise the issue of noncompliance before the trial court will not bar consideration by an appellate court. Sandelier v. State, 238 So. 3d 831, 834 (Fla. 4th DCA 2005).
Fla. R. Crim. P. 3.840 specifically provides entitlement to counsel in indirect criminal contempt proceedings.
When the trial court erred by not advising the defendant at any point that he was entitled to counsel, then the State might concede error. See Plank v. State, 190 So. 3d 594, 604 (Fla. 2016).
In Podolsky v. State, 118 So. 3d 258, 259 (Fla. 2d DCA 2013), the court found that when defendant arrived at indirect contempt hearing without counsel, the trial court did not advise him of his right to counsel or inform him that an attorney could be appointed if he could not afford one, and since he did not knowingly waive his right to counsel, it was error for the trial court to proceed.
In Sylvester v. State, 923 So. 2d 1289 (Fla. 5th DCA 2006), the court found it was an error for the trial court to allow the defendant’s counsel to withdraw and then proceed without appointing new counsel.
If there is no evidence in this record that the trial court advised the defendant that he had a right to counsel at any time during the contempt proceedings, the error would be fundamental error that would require that the case be reversed and remanded for proceedings consistent with Fla. R. Crim. P. 3.840. See Ensign v. State, 67 So. 3d 353, 355 (Fla. 2d DCA 2011).
This article was last updated on Friday, October 4, 2019.