Barr v. State
| Decision Date | 09 July 1976 |
| Docket Number | No. 75--758,75--758 |
| Citation | 334 So.2d 636 |
| Parties | Isaac Calvin BARR, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack O. Johnson, Public Defender, Bartow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
Appellant appeals a 60-year sentence for robbery and a 6-months sentence for contempt for calling the trial judge a son-of-a-bitch.
His assault on the robbery sentence, on the ground that it exceeds the statutory limit of 'life' since his life expectancy is less than 60 years, is patently without merit. No error appearing otherwise on the robbery conviction, the judgment and sentence therefor are left undisturbed.
The conviction for contempt, however, is fatally defective. It undisputedly appears that at the sentencing on the aforementioned robbery, and after having heard his sentence, appellant uttered the words 'son-of-a-bitch' towards the court. The trial judge admits that he did not hear these comments, although the bailiff and other persons in the courtroom did. The bailiff conferred with the trial judge and brought the matter to the court's attention. The court then ordered appellant returned before him and cited him for contempt. He thereupon summarily imposed an additional sentence of five years for the contempt to be served consecutively with the robbery sentence.
After a recess, the court reconsidered and set aside the judgment and sentence for contempt. He immediately conducted an evidentiary hearing and, after taking testimony including that of appellant, found appellant guilty of Direct criminal contempt. He promptly sentenced appellant to a term of six months in the county jail, again to run consecutively with the robbery sentence. Those proceedings cannot stand.
Rule 3.830, RCrP, relating to 'direct criminal contempt,' provides that criminal contempt may be punished summarily if the court 'saw or heard the conduct constituting the contempt committed in the actual presence of the court.' Here, as noted above, the trial judge did not hear the comments of the alleged contemnor. There was, therefore no Direct criminal contempt.
If anything, appellant's utterances constituted 'indirect' criminal contempt within the purview of Rule 3.840, RCrR, relating to actions Outside the presence of the court. Significantly, subsection 5 of that rule...
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Martinez v. State
...impose a sentence of six months or greater upon a judgment of contempt unless the accused has been afforded a jury trial. Barr v. State, 334 So.2d 636 (Fla.2d DCA1976). On the other hand, we have also specifically rejected the contention that a defendant was entitled to a jury trial in cont......
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Cunningham v. State, 76-2136
...that may be imposed for criminal contempt is one day less than six months. Aaron v. State, 284 So.2d 673 (Fla.1973); Barr v. State, 334 So.2d 636 (Fla. 2d DCA 1976).3 Rodriguez v. State, 119 So.2d 681 (Fla.1960); State v. Bateh, 110 So.2d 7 (Fla.1959); and Helton v. State, 106 So.2d 79 (Fla......
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Davila v. State
...when the judge heard a one-word expletive, not the alleged comment which two witnesses claimed to have heard); Barr v. State, 334 So.2d 636 (Fla. 2d DCA 1976) (reversing contempt conviction where the court did not hear the comments allegedly made by the defendant), receded from on other gro......
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Riley v. State
...judgment is required when a trial court does not personally witness or hear the allegedly contemptuous conduct. See Barr v. State, 334 So. 2d 636, 636 (Fla. 2d DCA 1976) (reversing direct contempt judgment where trial court did not hear defendant utter profanity, although court staff did), ......