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Florida Rules of Criminal Procedure

3.840. Indirect Criminal Contempt

A criminal contempt, except as provided in rule 3.830 concerning direct contempts, shall be prosecuted in the following manner: (a) Order to Show Cause. The judge, on the judge’s own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant. (b) Motions; Answer. The defendant, personally or by counsel, may move to dismiss the order to show cause, move for a statement of particulars, or answer the order by way of explanation or defense. All motions and the answer shall be in writing unless specified otherwise by the judge. A defendant’s omission to file motions or answer shall not be deemed as an admission of guilt of the contempt charged. (c) Order of Arrest; Bail. The judge may issue an order of arrest of the defendant if the judge has reason to believe the defendant will not appear in response to the order to show cause. The defendant shall be admitted to bail in the manner provided by law in criminal cases. (d) Arraignment; Hearing. The defendant may be arraigned at the time of the hearing, or prior thereto at the defendant’s request. A hearing to determine the guilt or innocence of the defendant shall follow a plea of not guilty. The judge may conduct a hearing without assistance of counsel or may be assisted by the prosecuting attorney or by an attorney appointed for that purpose. The defendant is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and testify in his or her own defense. All issues of law and fact shall be heard and determined by the judge. (e) Disqualification of Judge. If the contempt charged involves disrespect to or criticism of a judge, the judge shall disqualify himself or herself from presiding at the hearing. Another judge shall be designated by the chief justice of the supreme court. (f) Verdict; Judgment. At the conclusion of the hearing the judge shall sign and enter of record a judgment of guilty or not guilty. There should be included in a judgment of guilty a recital of the facts constituting the contempt of which the defendant has been found and adjudicated guilty. (g) Sentence; Indirect Contempt. Prior to the pronouncement of sentence, the judge shall inform the RULE 3.840 FLORIDA RULES OF CRIMINAL PROCEDURE RULE 3.840 134 defendant of the accusation and judgment against the defendant and inquire as to whether the defendant has any cause to show why sentence should not be pronounced. The defendant shall be afforded the opportunity to present evidence of mitigating circumstances. The sentence shall be pronounced in open court and in the presence of the defendant. Committee Notes 1968 Adoption. (a)(1) Order to Show Cause. The courts have used various and, at times, misleading terminology with reference to this phase of the procedure, viz. “citation,” “rule nisi,” “rule,” “rule to show cause,” “information,” “indicted,” and “order to show cause.” Although all apparently have been used with the same connotation the terminology chosen probably is more readily understandable than the others. This term is used in Federal Rule of Criminal Procedure 42(b) dealing with indirect criminal contempts. In proceedings for indirect contempt, due process of law requires that the accused be given notice of the charge and a reasonable opportunity to meet it by way of defense or explanation. State ex rel. Giblin v. Sullivan, 157 Fla. 496, 26 So.2d 509 (1946); State ex rel. Geary v. Kelly, 137 So.2d 262, 263 (Fla. 3d DCA 1962). The petition (affidavit is used here) must be filed by someone having actual knowledge of the facts and must be under oath. Phillips v. State, 147 So.2d 163 (Fla. 3d DCA 1962); see also Croft v. Culbreath, 150 Fla. 60, 6 So.2d 638 (1942); Ex parte Biggers, 85 Fla. 322, 95 So. 763 (1923). (2) Motions; Answer. The appellate courts of Florida, while apparently refraining from making motions and answers indispensable parts of the procedure, seem to regard them with favor in appropriate situations. Regarding motions to quash and motion for bill of particulars, see Geary v. State, 139 So.2d 891 (Fla. 3d DCA 1962); regarding the answer, see State ex rel. Huie v. Lewis, 80 So.2d 685 (Fla. 1955). Elsewhere in these rules is a recommended proposal that a motion to dismiss replace the present motion to quash; hence, the motion to dismiss is recommended here. The proposal contains no requirement that the motions or answer be under oath. Until section 38.22, Florida Statutes, was amended in 1945 there prevailed in Florida the common law rule that denial under oath is conclusive and requires discharge of the defendant in indirect contempt cases; the discharge was considered as justified because the defendant could be convicted of perjury if the defendant had sworn falsely in the answer or in a motion denying the charge. The amendment of section 38.22, Florida Statutes, however, has been construed to no longer justify the discharge of the defendant merely because the defendant denies the charge under oath. See Ex parte Earman, 85 Fla. 297, 95 So. 755 (1923), re the common law; see Dodd v. State, 110 So.2d 22 (Fla. 3d DCA 1959) re the construction of section 38.22, Florida Statutes, as amended. There appears, therefore, no necessity of requiring that a pleading directed to the order to show cause be under oath, except as a matter of policy of holding potential perjury prosecutions over the heads of defendants. It is recommended, therefore, that no oath be required at this stage of the proceeding. Due process of law in the prosecution for indirect contempt requires that the defendant have the right to assistance by counsel. Baumgartner v. Joughin, 105 Fla. 335, 141 So. 185 (1932), adhered to, 107 Fla. 858, 143 So. 436 (1932). (3) Order of Arrest; Bail. Arrest and bail, although apparently used only rarely, were permissible at common law and, accordingly, are unobjectionable under present Florida law. At times each should serve a useful purpose in contempt proceedings and should be included in the rule. As to the common law, see Ex parte Biggers, supra. (4) Arraignment; Hearing. Provision is made for a prehearing arraignment in case the defendant wishes to plead guilty to the charge prior to the date set for the hearing. The defendant has a constitutional right to a hearing under the due process clauses of the state and federal constitutions. State ex rel. Pipia v. Buchanan, 168 So.2d 783 (Fla. 3d DCA 1964). This right includes the right to assistance of counsel and the right to call witnesses. Baumgartner v. Joughin, supra. The defendant cannot be compelled to testify against himself. Demetree v. State, ex rel. Marsh, 89 So.2d 498 (Fla. 1956). Section 38.22, Florida Statutes, as amended in 1945, provides that all issues of law or fact shall be heard and determined by the judge. Apparently under this statute the defendant is not only precluded from considering a jury trial as a right but also the judge has no discretion to allow the defendant a jury trial. See State ex rel. Huie v. Lewis, supra, and Dodd v. State, supra, in which the court seems to assume this, such assumption seemingly being warranted by the terminology of the statute. There is no reason to believe that the statute is unconstitutional as being in violation of section 11 of the Declaration of Rights of the Florida Constitution which provides, in part, that the accused in all criminal prosecutions shall have the right to a public trial by an impartial jury. Criminal contempt is not a crime; consequently, no criminal prosecution is involved. Neering v. State, 155 So.2d 874 (Fla. 1963); State ex rel. Saunders v. Boyer, 166 So.2d 694 (Fla. 2d DCA 1964); Ballengee v. State, 144 So.2d 68 (Fla. 2d DCA 1962). Section 3 of the Declaration of Rights, providing that the right of trial by jury shall be secured to all and remain inviolate forever, also apparently is not violated. This provision has been construed many times as guaranteeing a jury trial in proceedings at common law, as practiced at the time of the adoption of the constitution (see, e.g., Hawkins v. Rellim Inv. Co., 92 Fla. 784, 110 So. 350 (1926)), i.e., it is applicable only to cases in which the right existed before the adoption of the constitution (see, e.g., State ex rel. Sellers v. Parker, 87 Fla. 181, 100 So. 260 (1924)). Section 3 was never intended to extend the right of a trial by jury beyond this point. Boyd v. Dade County, 123 So.2d 323 (Fla. 1960). There is some authority that trial by jury in indirect criminal contempt existed in the early common law, but this practice was eliminated by the Star Chamber with the result that for centuries RULE 3.840 FLORIDA RULES OF CRIMINAL PROCEDURE RULE 3.850 135 the common law courts have punished indirect contempts without a jury trial. See 36 Mississippi Law Journal 106. The practice in Florida to date apparently has been consistent with this position. No case has been found in this state in which a person was tried by a jury for criminal contempt. See Justice Terrell’s comment adverse to such jury trials in State ex rel. Huie v. Lewis, supra. The United States Supreme Court has assumed the same position with reference to the dictates of the common law. Quoting from Eilenbecker v. District Court, 134 U.S. 31, 36, 10 S.Ct. 424, 33 L.Ed. 801 (1890), the Court stated, “If it has ever been understood that proceedings according to the common law for contempt of court have been subject to the right of trial by jury, we have been unable to find any instance of it.” United States v. Barnett, 376 U.S. 681, 696, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964). In answer to the contention that contempt proceedings without a jury were limited to trivial offenses, the Court stated, “[W]e find no basis for a determination that, at the time the Constitution was adopted, contempt was generally regarded as not extending to cases of serious misconduct.” 376 U.S. at 701. There is little doubt, therefore, that a defendant in a criminal contempt case in Florida has no constitutional right to a trial by jury. Proponents for such trials seemingly must depend on authorization by the legislature or Supreme Court of Florida to attain their objective. By enacting section 38.22, Florida Statutes, which impliedly prohibits trial by jury the legislature exhibited a legislative intent to remain consistent with the common law rule. A possible alternative is for the Supreme Court of Florida to promulgate a rule providing for such trials and assume the position that under its constitutional right to govern practice and procedure in the courts of Florida such rule would supersede section 38.22, Florida Statutes. It is believed that the supreme court has such authority. Accordingly, alternate proposals are offered for the court’s consideration; the first provides for a jury trial unless waived by the defendant and the alternate is consistent with present practice. (5) Disqualification of Judge. Provision for the disqualification of the judge is made in federal rule 42(b). The proposal is patterned after this rule. Favorable comments concerning disqualification of judges in appropriate cases may be found in opinions of the Supreme Court of Florida. See Pennekamp v. State, 156 Fla. 227, 22 So.2d 875 (1945), and concurring opinion in State ex rel Huie v. Lewis, supra. (6) Verdict; Judgment. “Judgment” is deemed preferable to the term “order,” since the proper procedure involves an adjudication of guilty. The use of “judgment” is consistent with present Florida practice. E.g., Dinnen v. State, 168 So.2d 703 (Fla. 2d DCA 1964); State ex rel. Byrd v. Anderson, 168 So.2d 554 (Fla. 1st DCA 1964). The recital in the judgment of facts constituting the contempt serves to preserve for postconviction purposes a composite record of the offense by the person best qualified to make such recital: the judge. See Ryals v. United States, 69 F.2d 946 (5th Cir. 1934), in which such procedure is referred to as “good practice.” (7) Sentence; Indirect Contempt. The substance of this subdivision is found in present sections 921.05(2), 921.07 and 921.13, Florida Statutes. While these sections are concerned with sentences in criminal cases, the First District Court of Appeal in 1964 held that unless a defendant convicted of criminal contempt is paid the same deference the defendant is not being accorded due process of law as provided in section 12 of the Declaration of Rights of the Florida Constitution and the Fourteenth Amendment of the Constitution of the United States. Neering v. State, 164 So.2d 29 (Fla. 1st DCA 1964). Statement concerning the effect the adoption of this proposed rule will have on contempt statutes: This rule is not concerned with the source of the power of courts to punish for contempt. It is concerned with desirable procedure to be employed in the implementation of such power. Consequently, its adoption will in no way affect the Florida statutes purporting to be legislative grants of authority to the courts to punish for contempt, viz., sections 38.22 (dealing with “all” courts), 932.03 (dealing with courts having original jurisdiction in criminal cases), and 39.13 (dealing with juvenile courts). This is true regardless of whether the source of power is considered to lie exclusively with the courts as an inherent power or is subject, at least in part, to legislative grant. The adoption of the rule also will leave unaffected the numerous Florida statutes concerned with various situations considered by the legislature to be punishable as contempt (e.g., section 38.23, Florida Statutes), since these statutes deal with substantive rather than procedural law. Section 38.22, Florida Statutes, as discussed in the preceding notes, is concerned with procedure in that it requires the court to hear and determine all questions of law or fact. Insofar, therefore, as criminal contempts are concerned the adoption of the alternate proposal providing for a jury trial will mean that the rule supersedes this aspect of the statute and the statute should be amended accordingly. 1972 Amendment. Same as prior rule.

 

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Florida Rules of Criminal Procedure
TABLE OF CONTENTS
I. SCOPE, PURPOSE, AND CONSTRUCTION
3.010. Scope
3.020. Purpose and Construction
3.025. State and Prosecuting Attorney Defined
II. GENERAL PROVISIONS
3.030. Service of Pleadings and Papers
3.040. Computation of Time
3.050. Enlargement of Time
3.060. Time for Service of Motions and Notice of Hearing
3.070. Additional Time after Service by Mail
3.080. Nonverification of Pleadings
3.090. Pleading Captions
3.111. Providing Counsel to Indigents
3.112. Minimum Standards for Attorneys in Capital Cases
3.115. Duties of State Attorney; Criminal Intake
III. PRELIMINARY PROCEEDINGS
3.120. Committing Judge
3.121. Arrest Warrant
3.125. Notice to Appear
3.130. First Appearance
3.131. Pretrial Release
3.132. Pretrial Detention
3.133. Pretrial Probable Cause Determinations and Adversary Preliminary Hearings
3.134. Time for Filing Formal Charges
3.140. Indictments; Informations
3.150. Joinder of Offenses and Defendants
3.151. Consolidation of Related Offenses
3.152. Severance of Offenses and Defendants
3.153. Timeliness of Defendants Motion; Waiver
IV. ARRAIGNMENT AND PLEAS
3.160. Arraignment
3.170. Pleas
3.171. Plea Discussions and Agreements
3.172. Acceptance of Guilty or Nolo Contendere Plea
3.180. Presence of Defendant
V. PRETRIAL MOTIONS AND DEFENSES
3.190. Pretrial Motions
3.191. Speedy Trial
3.192. Motions for Rehearing
3.200. Notice of Alibi
3.201. [Battered-Spouse Syndrome Defense]
3.202. Expert Testimony of Mental Mitigation During Penalty Phase of Capital Trial: Notice and Examination by State Expert
3.203. Defendants Mental Retardation as a Bar to Imposition of the Death Penalty
3.210. Incompetence to Proceed: Procedure for Raising the Issue
3.211. Competence to Proceed: Scope of Examination and Report
3.212. Competence to Proceed: Hearing and Disposition
3.213. Continuing Incompetency to Proceed, Except Incompetency to Proceed with Sentencing: Disposition
3.214. Incompentency to Proceed to Sentencing: Disposition
3.215. Effect of Adjudication of Incompetency to Proceed: Psychotropic Medication
3.216. Insanity at Time of Offense or Probation or Community Control Violation: Notice and Appointment of Experts
3.217. Judgment of Not Guilty by Reason of Insanity: Disposition of Defendant
3.218. Commitment of a Defendant Found Not Guilty by Reason of Insanity
3.219. Conditional Release
VI. DISCOVERY
3.220. Discovery
VII. SUBSTITUTION OF JUDGE
3.231. Substitution of Judge
VIII. CHANGE OF VENUE
3.240. Change of Venue
IX. THE TRIAL
3.250. Accused as Witness
3.251. Right to Trial by Jury
3.260. Waiver of Jury Trial
3.270. Number of Jurors
3.280. Alternate Jurors
3.281. List of Prospective Jurors
3.290. Challenge to Panel
3.300. Voir Dire Examination, Oath and Excusing of Member
3.310. Time for Challenge
3.315. Exercise of Challenges
3.320. Manner of Challenge
3.330. Determination of Challenge for Cause
3.340. Effect of Sustaining Challenge
3.350. Peremptory Challenges
3.360. Oath of Trial Jurors
3.361. Witness Attendance and Subpoenas
X. CONDUCT OF TRIAL; JURY INSTRUCTIONS
3.370. Regulation and Separation of Jurors
3.371. Juror Questions of Witnesses
3.372. Juror Notebooks
3.380. Motion for Judgment of Acquittal
3.381. Final Arguments
3.390. Jury Instructions
3.391. Selection of Foreperson of Jury
3.400. Materials to the Jury Room
3.410. Jury to Review Evidence or for Additional Instructions
3.420. Recall of Jury for Additional Instructions
3.430. Jury not Recallable to Hear Additional Evidence
XI. THE VERDICT
3.440. Rendition of Verdict; Reception and Recording
3.450. Polling the Jury
3.451. Judicial Comment on Verdict
3.470. Proceedings on Sealing Verdict
3.490. Determination of Degree of Offense
3.500. Verdict of Guilty where more than one Count
3.505. Inconsistent Verdicts
3.510. Determination of Attempts and Lesser Included Offenses
3.520. Verdict in Case of Joint Defendants
3.530. Reconsideration of Ambiguous or Defective Verdict
3.540. When Verdict may be Rendered
3.550. Disposition of Defendant
3.560. Discharge of Jurors
3.570. Irregularity in Rendition, Reception and Recording of Verdict
3.575. Motion to Interview Juror
XII. POST-TRIAL MOTIONS
3.580. Court May Grant New Trial
3.590. Time for and Method of Making Motions; Procedure; Custody Pending Hearing
3.600. Grounds for New Trial
3.610. Motion for Arrest of Judgment; Grounds
3.620. When Evidence Sustains Only Conviction of Lesser Offense
3.630. Sentence Before or After Motion Filed
3.640. Effect of Granting New Trial
XIII. JUDGMENT
3.650. Judgment Defined
3.670. Rendition of Judgment
3.680. Judgment on Informal Verdict
3.690. Judgment of Not Guilty; Defendant Discharged and Sureties Exonerated
3.691. Post-Trial Release
3.692. Petition to Seal or Expunge
XIV. SENTENCE
3.700. Sentence Defined; Pronouncement and Entry; Sentencing Judge
3.701. Sentencing Guidelines
3.702. Sentencing Guidelines (1994)
3.703. Sentencing Guidelines (1994 as amended)
3.704. The Criminal Punishment Code
3.710. Presentence Report
3.711. Presentence Report: When Prepared
3.712. Presentence Report: Disclosure
3.713. Presentence Investigation Disclosure: Parties
3.720. Sentencing Hearing
3.721. Record of the Proceedings
3.730. Issuance of Capias when necessary to bring Defendant Before Court
3.750. Procedure when Pardon is Alleged as Cause for not Pronouncing Sentence
3.760. Procedure when Nonidentity is Alleged as Cause for not Pronouncing Sentence
3.770. Procedure when Pregnancy is Alleged as Cause for not Pronouncing Death Sentence
3.780. Sentencing Hearing for Capital Cases
3.790. Probation and Community Control
3.800. Correction, Reduction and Modification of Sentences
XV. EXECUTION OF SENTENCE
3.810. Commitment of Defendant; Duty of Sheriff
3.811. Insanity at Time of Execution: Capital Cases
3.812. Hearing on Insanity at Time of Execution: Capital Cases
3.820. Habeas Corpus
XVI. CRIMINAL CONTEMPT
3.830. Direct Criminal Contempt
3.840. Indirect Criminal Contempt
XVII. POSTCONVICTION RELIEF
3.850. Motion to Vacate, Set Aside or Correct Sentence
3.851. Collateral Relief After Death Sentence has been Imposed and Affirmed on Direct Appeal
3.852. Capital Postconviction Public Records Production
3.853. Motion for Postconviction DNA Testing
XVIII. FORMS
3.984. Application for Criminal Indigent Status
3.985. Standard Jury Instructions
3.9855. Juror Voir Dire Questionaire
3.986. Forms Related to Judgment and Sentence
3.987. Motion for Postconviction Relief
3.988. Sentencing Guidelines
3.989. Affidavit, Petition and Order to Expunge or Seal Forms
3.990(a). Sentencing Guidelines Scoresheet
3.990(b). Supplemental Sentencing Guidelines Scoresheet
3.991(a). Sentencing Guidelines Scoresheet (October 1, 1995)
3.991(b). Supplemental Sentencing Guidelines Scoresheet (October 1, 1995)
3.992(a). Criminal Punishment Code Scoresheet
3.992(b). Supplemental Criminal Punishment Code Scoresheet
3.993. Forms Related to Capital Postconviction Records Production
3.994. Order Certifying no Incarceration
3.995. Order of Revocation of Probation/Community Control
 
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Florida Rules of Evidence - Witnesses, Records and Documents
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