Opinion
No. 2D20-2651
05-06-2022
Jerome Dewitt BROWN, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
NORTHCUTT, Judge.
We affirm without further comment Jerome Dewitt Brown's convictions and sentences for violating sections 316.1935(2), 322.32(2)(c), and 843.02, Florida Statutes (2018). However, we reverse his judgment and sentence for direct criminal contempt pursuant to Florida Rule of Criminal Procedure 3.830 for failing to appear.
Florida law is clear that "the failure to appear pursuant to an order should be treated as indirect criminal contempt under [Florida Rule of Criminal Procedure] 3.840." State v. Diaz de la Portilla , 177 So. 3d 965, 972 (Fla. 2015) (explaining the plethora of reasons that "[t]he procedures ... governing direct criminal contempt [under Florida Rule of Criminal Procedure 3.830 ] simply are not suited for application to a failure to appear"). The only basis for charging Brown with contempt in this case was his failure to appear. Therefore, the conviction for direct criminal contempt under rule 3.830 was error.
Moreover, rule 3.830 specifically requires a trial court to "strictly comply" with several procedural requirements, such as "provid[ing] the defendant the opportunity to present evidence of excusing or mitigating circumstances." Fla. R. Crim. P. 3.830(b) ; see also Phelps v. State , 236 So. 3d 1162, 1163–64 (Fla. 2d DCA 2018) (holding that a failure to comply with rule 3.830 ’s requirements is a violation requiring reversal). The trial court here did not provide Brown with the procedural safeguards to which he was entitled. As in Phelps , then, "the error [here] is fundamental and we are required to correct it." Phelps , 236 So. 3d at 1164.
In sum, we affirm all of Brown's convictions and sentences except the judgment and sentence for direct criminal contempt. On that conviction and sentence, we reverse.
Affirmed in part and reversed in part.
VILLANTI and SLEET, JJ., Concur.