Opinion
No. 1D21-2815
07-27-2022
DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. STATE ATTORNEY, FOURTH JUDICIAL CIRCUIT; and Rickey Bray, Jr., Appellees.
Andrew J. McGinley, Acting General Counsel, Department of Children and Families, Tallahassee, for Appellant. Charlie Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Appellee Rickey Bray, Jr. Ashley Moody, Attorney General, Tallahassee, for Appellee State Attorney, Fourth Judicial Circuit.
Andrew J. McGinley, Acting General Counsel, Department of Children and Families, Tallahassee, for Appellant.
Charlie Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Appellee Rickey Bray, Jr.
Ashley Moody, Attorney General, Tallahassee, for Appellee State Attorney, Fourth Judicial Circuit.
Osterhaus, J.
The Department of Children and Families challenges an order of contempt arising from its failure to transport a criminal defendant to a mental health treatment facility designated by the Department. The court ordered the Sheriff in Duval County to transfer the Defendant to the Department's custody "within 72 hours, and upon notification of an available bed space by the Department." Some 27 days later, when the defendant hadn't yet been transferred, the public defender sought a contempt order and sanctions, which the trial court granted. The order required the Department to reimburse the Duval County Jail for expenses accrued at a rate of $67 for each day that the defendant remained in the Sheriff's custody that exceeded 15 days from the date of the commitment order. The Department objected to the sanction below and now seeks a writ of certiorari quashing the trial court's contempt order. For the reasons set forth below, we convert this matter to a final appeal and reverse the contempt order.
Although the Department seeks an extraordinary writ, we conclude that this matter should be treated as a final appeal. Common law certiorari is not available when the petitioner has an adequate remedy at law. Jaye v. Royal Saxon, Inc ., 720 So. 2d 214, 215 (Fla. 1998) ("[I]t is settled law that, as a condition precedent to invoking a district court's certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal."). Because the Department was a non-party in the underlying criminal case, the contempt order requiring it to pay the Sheriff's Office constitutes a final appealable order. See Fla. R. App. P. 9.110 (addressing final order appeals); Price v. Hannahs , 954 So. 2d 97, 100 (Fla. 2d DCA 2007) (recognizing a nonparty's right to appeal a contempt order); Shook v. Alter , 715 So. 2d 1082 (Fla. 4th DCA 1998) (converting a certiorari petition seeking review of a contempt order to an appeal). And so, like in Shook , we redesignate the Department's petition as a final appeal. We accept the petition and response as briefs and the appendices as the record.
Contempt sanctions are categorized as either criminal or civil. See Parisi v. Broward Cnty ., 769 So. 2d 359, 363–65 (Fla. 2000) (reviewing the contours of contempt jurisprudence). Criminal contempt is punitive, while civil contempt is coercive. Id. In the case of monetary fines, they may be imposed as civil-compensatory contempt sanctions, as civil-coercive contempt sanctions, or as criminal contempt sanctions. In this case, the contempt fine appears to be intended to both coerce and punish; that is, it has characteristics of both civil and criminal contempt sanctions. Analyzed through either lens, however, more was required before the court could find the Department in contempt and require per diem payments to the jail.
First, if the fines were intended to compensate for loss, then the court needed evidence to establish an injured party's actual losses. Johnson v. Bednar , 573 So. 2d 822, 824 (Fla. 1991). No party claimed a $67 per day loss, including the defendant who filed the contempt motion. The order establishes the Duval County Jail as the beneficiary of the per diem payments. But it too didn't claim or establish an actual loss amount at the hearing. Ash v. Campion, 247 So. 3d 581, 583 (Fla. 1st DCA 2018) (reversing where "[t]here was no argument about loss below, there was no evidence about the value of any loss below, and the trial court made no findings about loss below"). Instead, the trial court adopted the $67 per day amount of housing an inmate in the jail on its own initiative, based upon its own sources. Without evidence of actual loss, however, the contempt order is not a permissible compensatory fine.
If, alternatively, the trial court intended a coercive sanction unrelated to actual damages to force the Department into providing the defendant with bed space in a mental health treatment facility, then the order needed to include a purge provision. Id. at 582 ; Parisi , 769 So. 2d at 366 ("[I]n order to impose a valid coercive sanction, the trial court must ... include a purge provision."). Here, there was nothing the Department could do to avoid the fine. Instead, the order required the Department to pay $67 per day for expenses accrued by the Duval County Jail both retroactively and prospectively, presumably until bed space opened for the defendant at a mental health treatment facility. The trial court completed no review of whether the Department could comply with the court's order and purge the order. A party cannot be held in civil contempt if it lacks the ability to comply. Id. at 365 (noting that a contemnor must have the ability to purge the contempt); cf. Bowen v. Bowen , 471 So. 2d 1274, 1277 (Fla. 1985) (recognizing that incarceration for civil contempt "cannot be imposed absent a finding by the trial court that the contemnor has the present ability to purge himself of contempt"). Here, the Department asserted that it could not comply or purge the contempt due to personnel and financial limitations beyond its control. And no party presented evidence to the contrary. Dep't of Children & Families v. Soliman , 947 So. 2d 568 (Fla. 1st DCA 2006) (reversing a contempt order against the Department where there was no express showing that it had the ability to comply or that its refusal was willful). Thus, the contempt order is not a permissible coercive fine.
Finally, the contempt order cannot be considered a valid criminal contempt sanction. Persons facing charges of criminal contempt—"a crime in the ordinary sense"—are entitled to the same protections as criminal defendants. Parisi , 769 So. 2d at 364 (quoting Int'l Union, United Mine Workers v. Bagwell , 512 U.S. 821, 826, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) ). Strict compliance with Florida Rule of Criminal Procedure 3.840 is required in situations like this one. Wendel v. Wendel , 958 So. 2d 1039, 1040 (Fla. 1st DCA 2007). Florida Rule of Criminal Procedure 3.840(a) provides for the initiation of indirect criminal contempt proceedings based upon facts outlined in an affidavit, whereas here, the trial court's show cause order arose from the unverified motion of the public defender. In addition to lacking verification or an affidavit, there was no sworn testimony supporting the contempt motion at the hearing. See Paris v. Paris , 427 So. 2d 1080, 1081 (Fla. 1st DCA 1983) ("The order to show cause ... must be predicated on a sworn affidavit of a person with knowledge of the facts, the verification of a prosecuting attorney based on sworn testimony given to him, or testimony given under oath before the issuing judge."). Furthermore, "[c]riminal contempt requires some willful act or omission calculated to hinder the orderly functions of the court." Edge-Gougen v. State , 182 So. 3d 730, 732 (Fla. 1st DCA 2015). As discussed earlier, the trial court did not consider evidence of the Department's willfulness, even though the Department asserted that the unavailability of treatment facility space was out of its control. And so, reviewing the order through the lens of indirect criminal contempt standards, we are also compelled to reverse.
Accordingly, we reverse the order of contempt and remand for additional consideration consistent with this opinion.
Rowe, C.J., and B.L. Thomas, J., concur.