Bryant v. State, JJ-294

• Decision Date: 03 November 1978
• Docket Number: No. JJ-294,JJ-294
• Citation: 363 So.2d 1141
• Parties: Daniel BRYANT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1141

363 So.2d 1141

Daniel BRYANT, Appellant, v. STATE of Florida, Appellee.

No. JJ-294.

District Court of Appeal of Florida, First District.

Nov. 3, 1978.

Earl H. Archer, III, Tallahassee, for appellant.

Robert L. Shevin, Atty. Gen., Charles W. Musgrove and Raymond L. Marky, Asst. Attys. Gen., for appellee.

BOYER, Judge.

This is an appeal from an order of contempt, and other related matters.

One James Neal entered a plea of guilty to leaving the scene of an accident involving personal injury and was placed on probation for five years. One of the conditions of probation was that he would not drive "for any purpose during the term of probation". Another condition was that he "in all respects live honorably, work diligently at a lawful occupation, and support dependents, if any, to the best of (his) ability, and live within what income is available * * * ". Apparently Neal's drivers license was suspended but in due course, via some means not made clear by the record nor material here, his license was reissued to him by the Department of Motor Vehicles. On January 3, 1978, Neal and some 70 other parolees and probationers were transferred to appellant Bryant, a newly reassigned parole and probation officer, for supervision. The prior probation officer met with Bryant and personally introduced him to the persons he would be supervising. One of the persons they attempted to visit was Neal. He, however, was at work so they talked to his sister who indicated that Neal had found better employment in Gainesville and was driving to and from work. Bryant thereafter called Neal into his office and was then informed of the reissuance of the driver's license, Neal having stated that since the license was reissued he thought the condition of probation that he not drive had been lifted. Bryant told Neal that he might be in violation of his probation. However, he did not instruct Neal to continue nor discontinue driving, because he did not know whether it would "violate Neal's rights." Bryant was aware that the trial judge, on a prior occasion, had refused to modify the conditions of probation as to driving. Bryant informed Neal that he would investigate his case and that he would seek a modification of the court order if his investigation revealed the truth of the representations made to him by Neal. Bryant continued to phase into his new assignment. He contacted the Mental Health Clinic, the DWI School and Neal's employer. He learned that Neal had made a good adjustment, complied with the provisions of probation pertaining to abstention from alcohol and was a good employee. He also determined that it was essential to Neal's continued employment that he be permitted to drive. On February 3, 1978 Bryant attempted to make an appointment with the trial judge to talk about the Neal case but he was unable to arrange for an appointment until February 13. At that meeting Bryant related the findings of his investigation to the trial judge and asked if the judge would be inclined to modify the conditions of probation so as to allow Neal to drive to work. The judge declined. Bryant, on the next day, went to Neal's home to inform Neal of the judge's decision. Neal was not at home so Bryant talked with Neal's mother. Three days after having talked to the judge, Bryant physically took Neal's driver's license. On February 17, the trial judge issued a rule to show cause directing Bryant to show cause why he should not be held in contempt of court for indirect criminal contempt and sentenced accordingly. In due course an attorney was appointed to represent Bryant who requested a continuance and a jury trial. The trial was continued one day and the motion for a jury trial was denied. Another motion requesting the trial judge to recuse himself was also denied. When the hearing was commenced Bryant was directed by the trial judge to proceed with his defense although no evidence had been adduced by the state nor the trial judge. After Bryant testified the trial judge cross-examined him. The record reflects that the judge, without being under oath, dictated into the record his narrative concerning his recollection of what transpired when he and the defendant met on February 13. The trial judge refused to be examined by Bryant's attorney concerning his recollection testimony. Bryant was found to be in criminal contempt and an order of contempt was entered on March 1, 1978.

Examining the record, we find that Neal's order of probation was not directed to the Department of Offender Rehabilitation nor any of its employees, but only to Neal. Bryant could not, therefore, of course, be held in contempt for violation of that order. Indeed, the record reveals that the rule to show cause which formed the basis for the charge against Bryant only recited that he was aware of the provisions of the probation order; that his predecessor had sought modification so as to allow Neal to operate a motor vehicle for work purposes and that the court had declined such modification; that such declination was within the knowledge of Bryant and that Bryant "well knowing of the terms of the probationary order, and that its modification had been sought on a prior occasion by your predecessor in office, nonetheless did give the defendant verbal authorization to operate a motor vehicle to drive daily between his home in Williston, Levy County, Florida and his employment in Gainesville, Alachua County, Florida" and that Neal "has been operating a motor vehicle pursuant to your authorization but in controvention and direct violation of the order of probation".

Aside from the procedural matters which we will address in due course, it is apparent that in order for Bryant to have been validly found to be in contempt it was necessary that the charges against him, as above recited, be established by proof. The thrust of the charge is that Bryant gave verbal authorization to Neal to operate a motor vehicle contrary to the court's order and that Neal had been operating a motor vehicle pursuant to such authorization. We do not find proof of that charge in the record. Neal did not testify. Bryant specifically denied giving any such authorization or permission and there was no other evidence on the point. The record does reflect that Bryant was aware of the restriction and was aware that Neal was nevertheless driving. While he did not then and there direct Neal to discontinue driving neither did he give permission nor authorization. Bryant's testimony on the point was:

"Even though the order says that you are not to drive, and it looks like that you are in violation, I cannot proceed at this moment because I don't know that much about the case. Let me back off, and I am not going to take any action until I find out more about this situation. It is a likelihood that the court will not go along with a modification based upon your past driving record and the fact that he had already refused once; but I will attempt to seek a modification in this matter in order that you may keep your job."

Further, intent is one of the elements of contempt. Somerstein v. City of Miami Beach, 319 So.2d 158 (Fla. 3rd DCA 1975). There is no evidence of intent by Bryant to disobey the court's order in this case. Nor is there evidence that Bryant's alleged disobedience of the court order was willful. Bryant was a layman and did not understand the legal significance of the reissuance of Neal's driver's license. When the trial judge refused to modify the terms of Neal's probation as to the driving condition, Bryant immediately took Neal's driver's license. The record reveals no contempt. (Florida Ventilated Awning Company, Inc. v. Dickson, 67 So.2d 218 (Fla.1953). Department of Health and Rehabilitative Services v. State, 338 So.2d 220 (Fla. 4th DCA 1976).)

In Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977) the Florida Supreme Court distinguished civil contempt from direct or indirect criminal contempt as follows:

"If the purpose of the proceedings is to coerce action or non-action by a party, the order of contempt is characterized as civil. This type contempt proceeding is ordinarily instituted by one of the parties to the litigation who seeks to coerce another party to perform or cease performing an act. The order of contempt is entered by the court for the...