O'Brien v. State

• Decision Date: 21 May 1971
• Docket Number: No. 70--484,70--484
• Parties: William C. O'BRIEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 252

248 So.2d 252

William C. O'BRIEN, Appellant, v. STATE of Florida, Appellee.

No. 70--484.

District Court of Appeal of Florida, Fourth District.

May 21, 1971.

J. Brian Brennan of Foley & Brennan, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, Charles W. Musgrove and James M. Adams, Asst. Attys. Gen., West Palm Beach, for appellee.

MAGER, Judge.

This is an appeal from a judgment of the Criminal Court of Record for Palm Beach County, Florida, holding the appellant, William C. O'Brien, in contempt of court and sentencing him to a prison term of one year.

The appellant was tried on a felony charge in the Criminal Court of Record for Palm Beach County, Florida. After he was convicted, the appellant appealed to the Fourth District Court of Appeal on April 8, 1968. While that appeal was pending, the appellant filed in the trial court a motion seeking to have the trial judge, Judge Vaughn Rudnick, and the public defender held in contempt of court for their alleged failure to expedite the preparation of the transcript of testimony for use in connection with the appeal. Judge Rudnick properly ignored the frivolous assertions in the motion and treated it as a request to extend the time for preparation of the transcript. This action inspired the appellant to write the following letter to Judge Rudnick:

'12 December '68

'Sir:

By what rule, by what logic, by what audacity do you presume to adjudge an application for an order to Show Cause which names you as one of the respondents?

That application, complete with certificate of service and oath of Insolvency, was filed with the Clerk of the Court at the Palm Beach County Courthouse. It was filed in such an ordinary manner so that it might obtain an objective hearing. As a matter of course and courtesy, a copy of the application was mailed to you--a respondent, and to the Public Defender (by title only)--the other respondent. And yet you quickly dispatched of the document as though 'conflict of interest' were make-believe words for the unreal world of television drama.

Am I so different from other men that you lacked the courage to allow the issues to be ruled upon by an uninvolved third party? Does but one Judge, you alone, sit at the Palm Beach County Courthouse?

You did answer my application however. In the language of your denial you protect, defend, and justify the actions of the court reporter as though that individual were one of the respondents to the cause. Neither by name nor by title was that person so named. Therefore, since your wording conveys such a well-depicted false impression, I can conclude only that this deceitful effect was intentional.

In answering my application, not only did you discuss elements and factors not presented (and does it really disturb you that men carelessly convicted seek justice?), but you failed to confront all the matters at issue. You did not answer those items which concerned you--again misleading the reader of your denial by concealing the identity of the respondents and the content of the document.

The action, as obvious as the title page, was not filed against any others save both the person, Vaughn J. Rudnick, and the office--The Public Defender. It was not answered in that fashion.

I honestly thought that you were a better man, and I regret that you have revealed yourself as something less. I honestly thought that the multitude of errors which occurred about my trial were the result of the unusual confusion of that trial, now I suspect something else.

I will seek a review of this matter before higher authorities.

William C. O'Brien'

Judge Russell McIntosh, a Judge of the Criminal Court of Record of Palm Beach County issued an order on January 22, 1969, which directed appellant to show cause why he should not be held in contempt ¹ by reason of the comments contained in the aforementioned letter. Following a hearing on the show cause order, Judge McIntosh entered an order on May 6, 1970, in which he concluded in part:

'The above letter constituted the charge of contempt of Court upon which hearing was had and this Court finds that the above letter constitutes contempt of Court for interfering with the administration of justice, for embarrassing or degrading a judge in the performance of his duty and for degrading judicial authority and dignity of the Courts generally.'

On the basis of this finding the judge then adjudicated appellant in contempt of court and sentenced him to imprisonment in the Palm Beach County Jail for a period of one year to run consecutively with any sentences which appellant was then serving.

The primary issue presented by this appeal is whether or not the letter which was written after appellant's conviction but while his appeal therefrom was still pending constituted (indirect) criminal contempt of court. It is the position of the appellant that the letter in question was 'absolutely privileged' and could not serve as a foundation for criminal contempt. Appellant further contends that Judge McIntosh did not have jurisdiction under Rule 1.840(a)(5), 33 F.S.A. to preside at the show cause order hearing.

We have carefully considered the contentions of the appellant and are of the opinion that they are without merit. A review of the case law reflects the absence of any hard and fast rule to determine, with any degree of certainty, those words or actions that will constitute contempt; the determination is generally dependent upon the context of the proceedings. However, the cases do reflect the promulgation of general principles against which one can measure the letter in question to determine whether it constitutes contempt. In Ex Parte Crews, 1937, 127 Fla. 381, 173 So. 275, at 279, it is stated:

'It may be said broadly, but certainly, that any act which is calculated to embarrass hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity, is a contempt. McCarthy v. Hugo, 82 Conn. 262, 73 A. 778, 135 Am.St.Rep. 270, 17 Ann.Cas. 219; Dahnka v. People, 168 Ill. 102, 48 N.E. 137, 39 L.R.A. 197. The test is not the physical propinquity of the act to the court, but its tendency to directly affect the administration of justice. * * *'

Ex Parte Earman, 1923, 85 Fla. 297, 95 So. 755, at 760, which is considered to be one of the landmark cases in this state, discusses indirect contempts and criminal contempts and holds:

'An indirect or constructive contempt is an act done, not in the presence of a court or of a judge acting judicially, but at a distance under circumstances that reasonably tend to degrade the court or the judge as a judicial officer, or to obstruct, interrupt, prevent, or embarrass the administration of justice by the court or judge. See Ex parte McCown, 139 N.C. 95, 51 S.E. 957, 2 L.R.A. (N.S.) 603.

'A criminal contempt is conduct that is directed against the authority and dignity of a court or of a judge acting judicially, as in unlawfully assailing or discrediting the authority or dignity of the court or judge or in doing a duly forbidden act.'

In Zarate v. Culbreath, 1942, 150 Fla. 543, 8 So.2d 1 the court pointed out that there are factors other than 'interference with the administration of justice' which must be considered in determining whether an offending act is contemptuous. In this regard it was observed in Zarate at p. 3:

'When we adhere to the enunciation contained in State v. Peacock, supra, we are brought to answer the question, whether or not the offending allegation was one which could reasonably result in 'actual and direct obstruction to, or interference with, the administration of justice'. Aside from this we may consider whether or not the alleged offending act was such as to reasonably result in bringing the Judge or the Court into contempt, disrespect or shame in the public eye.' ² (Emphasis supplied.)

In our opinion the foregoing decisions support affirmation of the findings of the trial judge. We are not unmindful of the proposition that there may be circumstances where defamatory words May be regarded as privileged such as in the case where they are relevant or pertinent to the subject of inquiry (State ex rel. Giblin v. Sullivan, 1946, 157 Fla. 496, 26 So.2d 509; see also State ex rel. McGregor v. Peacock, 1934, 113 Fla. 816, 152 So. 616). We are unable to conclude as did the trial court below that the letter in question accusing Judge Rudnick of improprieties was in any way relevant or material to the inquiry within the meaning of State v. Sullivan, supra. Nor are we persuaded by the contention that the letter in question is in the nature of a 'pleading'; for even if it was a 'pleading' it could not serve to insulate contemptuous matter. See 6 Fla.Jur. § 13, p. 571, citing State v. Peacock, Zarate v. Culbreath, and State v. Sullivan, supra. See also note 3, infra. In this connection the comments made by the court in the Sullivan case are pertinent, 26 So.2d at 516:

'As a general rule, any publication tending to intimidate, influence, impede, embarrass or obstruct courts in the due administration of justice in matters pending before them constitutes contempt. The rule applies to any publication which has a tendency to prejudice or prevent fair and impartial action in a case under judicial investigation or by reflecting on the court, counsel, parties or witnesses respecting the cause. It is not necessary to show that they actually obstructed, impeded or embarrassed the administration of justice, although it must appear that their tendency was of that character. Ex parte Biggers, 85 Fla. 322, 95 So. 763; 17 C.J.S., Contempt, pp. 42, 43, § 30. The filing of papers, however, which are gross and indelicate in language, the use of scandalous language in a brief, or the making of statements therein charging the court with improper motives in rendering a certain line of decisions, may constitute contempt. 12 Am.Jur. 395--398, pars. 9--14.'

See also Cassidy v....