Direct Criminal Contempt
Direct criminal contempt involves situations where the judge him/herself witnesses the conduct which constitutes the alleged contempt. Florida Rule of Criminal Procedure 3.830 governs these situations and gives the court the authority to punish the conduct “summarily”. The only requirements are that the court:
Explain the facts upon which the contempt is based on the record;
Ask the defendant if there is any reason why s(he) should not be found guilty of contempt and sentenced immediately;
Provide the defendant an opportunity to present any excuses/mitigating circumstances;
Pronounce the sentence in open court
Because the Rule authorizes a judge to act immediately, a defendant is not entitled to an attorney in direct criminal contempt proceedings, so long as the punishment given is less than six months in jail. Plank v. State 946 So.2d 1235 (Fla. 2016).
Indirect Criminal Contempt
Indirect contempt begins with a Motion for Order to Show Cause. This can be initiated by the Court or “any person having knowledge of the facts”. Florida Rule of Criminal Procedure 3.840. The Order must include the facts constituting the contempt and must specify the time/date/place of the hearing with reasonable notice. If the court does not follow these procedures exactly, the contempt may not stand. Mix v. State, 827 So.2d at 399 (Fla. 2nd DCA 2002).
The Defendant has certain rights in a proceeding for indirect contempt:
Arraignment (to be informed of the accusations against you)
Counsel (to be appointed if you cannot afford)
Call witnesses/testify in his/her defense
Present mitigating evidence prior to sentencing
Civil Contempt
The purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court. As a result, a person should only be incarcerated as a result of civil contempt where this could feasibly encourage compliance; in other words, the contemnor must have the ability to comply.
For example, if a father is held in contempt for failure to pay child support, it is only appropriate to sentence him to jail if the court believes he has the ability to pay the purge amount in exchange for his release. If the father does not have the money, the jail sentence will not accomplish the purpose of encouraging father to pay the support amount, and therefore is not an appropriate consequence. Bowen v. Bowen, 471 So.2d 1274, (Fla. 1985).
The party moving for contempt has the burden to demonstrate that the contempt is willful - from there, the burden shifts to the defendant to demonstrate that there was no contempt, or that it was not a willful violation of the court order (not within their control).
Contempt issues often arise in civil cases, and your lawyer may not be comfortable or experienced with contempt matters. It is important to retain counsel who understands your rights and is skilled at protecting your interests in these matters. Our attorneys have experience in both criminal and civil litigation and know how to navigate the complicated procedures involved in different types of matters. Contact Wurtzel Law to set up a free consultation to further discuss your matter today.