Opinion
Case No. 5D22-414
03-14-2022
Samuel PEREZ Petitioner, v. STATE of Florida and Madison Weiss Respondents.
Shenee M. Craig, of The Legal Justice Law Firm, P.A., Orlando, for Petitioner. Ashley Moody, Attorney General Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent, State of Florida. Madison Weiss, Winter Springs, pro se.
Shenee M. Craig, of The Legal Justice Law Firm, P.A., Orlando, for Petitioner.
Ashley Moody, Attorney General Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent, State of Florida.
Madison Weiss, Winter Springs, pro se.
WALLIS, J.,
Samuel Perez ("Petitioner") petitions this court for an emergency writ of habeas corpus, seeking immediate release from custody following the trial court's finding him in direct criminal contempt for his alleged failure to complete a court-ordered Batterer's Intervention Program. We conclude that the trial court erred in holding Petitioner in direct criminal contempt based on conduct that did not occur in the presence of the trial judge. See Fla. R. Crim. P. 3.830 (setting forth procedures applicable in direct criminal contempt proceedings and explaining that "[a] criminal contempt may be punished summarily only if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court"); Plank v. State, 190 So. 3d 594, 606 (Fla. 2016) (explaining that Florida Rule of Criminal Procedure 3.830 governs direct criminal contempt and requires that the contemptuous acts be committed in the presence of the judge, whereas Florida Rule of Criminal Procedure 3.840 governs indirect criminal contempt, which deals with conduct that occurred outside of the presence of the court and requires evidence to prove).
Furthermore, the trial court failed to comply with the requirements of Rule 3.830 because it did not allow Petitioner a meaningful opportunity to offer mitigating testimony regarding his enrollment in, and completion of, the program. See Fla. R. Crim. P. 3.830(b) ("The court shall provide the defendant the opportunity to present evidence of excusing or mitigating circumstances."). In addition, the trial court failed to provide a recital of the facts on which it based the adjudication of guilt. See Fla. R. Crim. P. 3.830(c) (requiring recital of facts on which adjudication of guilt is based).
Accordingly, we grant the Petition for Emergency Writ of Habeas Corpus, vacate the Order of Contempt, and remand.
GRANT PETITION, VACATE ORDER, AND REMAND.
SASSO, J., concurs.
TRAVER, J., concurs and concurs specially with opinion.
TRAVER, J., concurring specially.
I concur with the majority opinion. Petitioner's failure to enroll in or complete a batterer's intervention program ("BIP") occurred outside the trial court's presence, and the trial court did not afford Petitioner mandatory due process safeguards. Accordingly, criminal contempt sanctions were unavailable.
I write to address the trial court's apparent frustration with Petitioner's non-compliance with its BIP order. Following entry of an injunction, the trial court set four different status hearings to monitor Petitioner's progress in BIP, which is a 29-week program designed to hold perpetrators accountable for their acts and to protect victims and children. See §§ 741.32, 741.325(1), Fla. Stat. (2021). One status hearing got rescheduled, and Petitioner failed to appear at another. A BIP provider discharged Petitioner for excessive absences over this time. Although the trial court ultimately punished Petitioner for failing to fulfill the trial court's BIP directive, it initially appears the trial court was attempting to coerce him to enroll in and complete the course.
Every court has the power to punish contempts against it, whether direct or indirect. § 38.22, Fla. Stat. (2021). The purpose of criminal contempt is to punish, while civil contempt is to obtain compliance with a prior order. See Bowen v. Bowen , 471 So. 2d 1274, 1277 (Fla. 1985). If the trial court wanted Petitioner to comply with its BIP directive, indirect civil contempt proceedings would have provided a more appropriate framework. See id. It appears the trial court may have recognized this; it issued an order to show cause that threatened both civil and criminal contempt penalties.
Indirect civil contempt proceedings have procedural requirements. As an initial matter, a trial court cannot hold a party in indirect civil contempt if the trial court's underlying order is not "sufficiently explicit or precise to put a party on notice of exactly what it must or must not do." See Wilcoxon v. Moller , 132 So. 3d 281, 286–87 (Fla. 4th DCA 2014). These proceedings also require basic due process protections like proper notice and time to prepare. See Baldwin v. Baldwin , 204 So. 3d 565, 567 (Fla. 5th DCA 2016). Any judgment of civil contempt resulting in incarceration must also include a purge provision. See Bowen , 471 So. 2d at 1277 ; Dep't of Child. & Fams. v. R.H. , 819 So. 2d 858, 862 (Fla. 5th DCA 2002). A purge provision provides the contemnor the means to eliminate his sanction through compliance, or as commonly stated, the key to his jail cell. See Bowen , 471 So. 2d at 1277. Furthermore, the trial court must find the contemnor willfully violated the subject order, and that he has the ability to comply with the purge provision. See id . at 1279. A written order memorializing these findings is required. See Grant v. Kopp , 27 So. 3d 190, 190 (Fla. 5th DCA 2010).
The majority's opinion does not prevent the trial court from ensuring that Petitioner follows all aspects of its final judgment, including enrollment in, and completion of, BIP. But if the trial court elects to pursue contempt proceedings, it must follow appropriate due process safeguards, no matter what form of contempt it seeks to impose.
Finally, I would note that the threat of contempt alone is often sufficient to obviate a contempt proceeding. Indeed, the trial court's use of status hearings to monitor Petitioner's compliance, along with its order to show cause, apparently worked. Petitioner had re-enrolled in a class when the trial court adjudged him in contempt. Nothing would have precluded the trial court from setting a short status date and advising Petitioner of potential sanctions for failure to comply in the future.