Summary
finding that foul language of the defendant in the presence of the court was contemptuous and upheld on appeal
Summary of this case from Ducas v. StateOpinion
Nos. 77-1862, 78-160.
July 5, 1978.
Appeal from the Dade County Circuit Court, Paul Baker, J.
Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
Cynthia Doris Jones appeals from an order revoking probation with consequent adjudication of guilt and sentence on the original conviction, or imprisonment for a term of 5 years, and also appeals from a judgment holding her in contempt of court, for which no separate sentence was imposed.
We hold the revocation of probation order was improper because of procedural deficiencies. The record shows that when the application for revocation came on for hearing the defendant was not present and the matter was not then heard, and the affidavit submitted as the basis for the revocation was dismissed. When the matter again came on for hearing, that affidavit was not refiled, and no new or other affidavit was filed. Also, due apparently to the serious distraction created by highly improper and foul language of the defendant in the presence of the court, for which the defendant was adjudged in contempt, the revocation was entered without the required trial or hearing on the merits thereof.
The order revoking probation and the adjudication of guilt and sentence of imprisonment are reversed, and the cause is remanded for further proceedings thereon. On the appeal from the judgment of contempt, that judgment is affirmed and the cause remanded for imposition of sentence thereon.
It is so ordered.