Fabian v. State, s. 90-2349

• Decision Date: 18 September 1991
• Docket Number: 90-2350,Nos. 90-2349,s. 90-2349
• Parties: Karen S. FABIAN, Appellant, v. STATE of Florida, Appellee. 585 So.2d 1158, 16 Fla. L. Week. D2432
• Court: Florida District Court of Appeals

Page 1158

585 So.2d 1158

Karen S. FABIAN, Appellant, v. STATE of Florida, Appellee.

Nos. 90-2349, 90-2350.

585 So.2d 1158, 16 Fla. L. Week. D2432

District Court of Appeal of Florida Fourth District.

Sept. 18, 1991.

Consolidated appeals from the Circuit Court for Broward County; Mel Grossman, Judge.

Richard L. Jorandby, Public Defender, and Jill Hanekamp, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Sylvia H. Alonso, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Affirmed.

DOWNEY and GUNTHER, JJ., concur.

FARMER, J., dissents with opinion.

FARMER, Judge, dissenting.

The power to punish direct criminal contempt is one of the most unusual of judicial powers: the judge who was the object or butt of the allegedly contemptuous conduct becomes the prosecutor and then sits in judgment over the very defendant who is said to have just assailed the judicial dignity. That precise circumstance is condoned nowhere else in the law. For that reason, the power must be cautiously and sparingly used. Seaboard Air Line Ry. Co. v. Tampa Southern R. Co., 101 Fla. 468, 134 So. 529 (1931); Demetree v. State, 89 So.2d 498 (Fla.1956).

In this case, events began ordinarily enough. The court had just questioned appellant at a first appearance as to aliases and explained the charges against her (burglary of a dwelling). The court then inquired if appellant could afford an attorney, and the following took place:

THE DEFENDANT: No.

THE COURT: You've got the public defender.

THE DEFENDANT: Thank you very much.

THE COURT: Off the record.

* * * * * *

THE COURT: Ms. Fabian, your attitude is one of disrespect. Your facial gestures, the tone of your voice, your mannerisms, your smirking is contemptuous. I'm going to give you an opportunity before I hold you in contempt of court to take that smirk off your face and to apologize.

THE DEFENDANT: Excuse me, sir?

THE COURT: I'm ordering you at this time to show cause why you shouldn't be held in direct criminal contempt of court. I'll give the Public Defender a moment to discuss the matter with you.

* * * * * *

THE DEFENDANT: I'm sorry, Your Honor. I'm sorry, Your Honor.

THE COURT: Say it like you mean it, ma'am.

THE DEFENDANT: (Makes a sound.)

THE COURT: No, not good enough.

THE DEFENDANT: Thank you.

THE COURT: I hold you in direct criminal contempt of court, sentence you to six months Broward County Jail. You have 30 days in which to take an appeal from the sentence. If you can't afford an attorney, I'll be happy to appoint one for you.

THE DEFENDANT: Son of a bitch.

THE COURT: I'm sorry. What did you say ma'am?

THE DEFENDANT: Thank you.

THE COURT: No ma'am. I asked you what did you say?

THE DEFENDANT: (No response.)

THE COURT: Ma'am, let the record reflect that the defendant has just indicated contempt for the Court by uttering the words "son of a bitch." I'm going to give you occasion to show cause why you should not be held in direct criminal contempt of court. Counselor, I expect that you'll talk to her. Now I'm ordering you ma'am, to show cause why you shouldn't be held in direct criminal contempt of court.

THE DEFENDANT: Sir, I have no reason to be. At all.

THE COURT: This court finds continuing disrespect and contempt of court. Finds the Defendant guilty of direct criminal contempt of court. Sentences the Defendant to six months incarceration in the Broward County Jail consecutive to the contempt sentence previously imposed. I'd suggest detention officers get her out of here before she becomes a permanent resident in the Broward County Jail. [e.s.]

Let me say straightaway that I respect the trial judges who preside over crowded criminal dockets in Florida. They must deal with an infinite variety of people in the most distressing circumstances but without the time for reflection, research and contemplation which appellate judges enjoy. That they are able to treat the angry and unruly repeat offenders whom they regularly confront with any calmness at all is a measure of their judicial credit.

The demanding setting in which they operate, however, is only an additional reason why they must use their considerable contempt authority with profound personal restraint. Where the personal feelings or rancor of a judge are most likely to surface, there indeed the greatest circumspection must be placed on the judge's use of the powers of office. If the judicial spleen is likely to influence judicial action, that is just the best reason to restrain the flexing of the judicial muscles.

With all due respect to Judge Grossman--an able, experienced and respected criminal court judge--and to my colleagues, I am unable to join in affirming these contempt convictions. I cannot help feeling, for I have absolutely no other basis to say it, that Judge Grossman had just seen one smirk too many, heard one too many snide remarks, and had endured one too many abusive attitudes on this day. I wonder if he punished conduct that he might have waved off with a laugh on another.

I have strong doubts whether...