Garrett v. State
Decision Date | 18 May 2004 |
Docket Number | No. 1D03-4984.,1D03-4984. |
Citation | 876 So.2d 24 |
Parties | John GARRETT, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for appellant.
Charlie Crist, Attorney General; Shasta W. Kruse, Assistant Attorney General, Tallahassee, for appellee.
Appellant, John Garrett, challenges a written order holding him in direct criminal contempt and sentencing him to 180 days in jail. Appellant asserts that the trial court erred in sentencing appellant without offering him an opportunity to present mitigating circumstances. We agree and reverse.
On October 3, 2003, appellant appeared for a jury trial on three separate criminal charges. His court-appointed attorney notified the judge that he was concerned that appellant was so intoxicated that he was not competent to proceed to trial, and the prosecutor stated that the case could be continued. The judge ordered appellant held in custody and dispatched the bailiff to retrieve a breathalyzer machine. The probation officer testified that appellant blew into her machine and it registered a .052 and a .075.
The judge later entered a written order of contempt.
Rule 3.830, Florida Rules of Criminal Procedure provides:
A 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. The judgment of guilt of contempt shall include a recital of those facts on which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against the defendant and inquire as to whether the defendant has any cause to show why he or she should not be adjudged guilty of contempt by the court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.
(Emphasis added).
Strict compliance with rule 3.830 is necessary to safeguard procedural due process. Berman v. State, 751 So.2d 612, 613 (Fla. 4th DCA 1999); Cook v. State, 636 So.2d 895, 896 (Fla. 3d DCA 1994). In O'Neal v. State, 501 So.2d 98, 100 (Fla. 1st DCA 1987), this court determined that merely asking the defendant if he wished to explain his behavior was insufficient to meet the requirement that the defendant be given an opportunity to present evidence of excusing or mitigating circumstances. In Marshall v. State, 764 So.2d 908 (Fla. 1st DCA 2000), we cited O'Neal, and again reversed an...
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...Rule of Criminal Procedure 3.830 is necessary to ensure that those procedural due process rights are safeguarded. Garrett v. State, 876 So.2d 24 (Fla. 1st DCA 2004). Failure to follow the procedural requirements of direct criminal contempt constitutes fundamental error. Id. at 25-26. Rule 3......
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Hutcheson v. State, 5D05-98.
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