Gidden v. State

• Decision Date: 04 February 1993
• Docket Number: No. 79387,79387
• Citation: 613 So.2d 457
• Court: Florida Supreme Court
• Parties: 18 Fla. L. Weekly S95 Milton GIDDEN, Petitioner, v. STATE of Florida, Respondent.

Page 457

613 So.2d 457

18 Fla. L. Weekly S95

Milton GIDDEN, Petitioner, v. STATE of Florida, Respondent.

No. 79387.

Supreme Court of Florida.

Feb. 4, 1993.

James B. Gibson, Public Defender, and Lyle Hitchens, Asst. Public Defender, Daytona Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., and James N. Charles and Rebecca Roark Wall, Asst. Attys. Gen., Daytona Beach, for respondent.

OVERTON, Justice.

We have for review Gidden v. State, 593 So.2d 294 (Fla. 5th DCA 1992), in which the district court held that written findings of fact, setting forth the basis for indirect criminal contempt, are not required under rule 3.840(a)(6), Florida Rules of Criminal Procedure, where sufficient oral findings are made on the record. The district court certified conflict with Hofeling v. Hofeling, 546 So.2d 1176 (Fla. 2d DCA 1989). ¹ For the reasons expressed, we approve the decision of the district court.

The record in this case reflects that Gidden was arrested and charged with one count of resisting an officer with violence. He was released on bond. He subsequently failed to appear for his June 7, 1988, arraignment, and, consequently, his bondsman forfeited a $1,000 bond. He was finally located and rearrested on June 22, 1990, and was convicted of the offense charged on October 10, 1990. Due to his failure to appear, Gidden was also charged with indirect criminal contempt, and, after appropriate arraignment and notice, a hearing was held at which Gidden was given an opportunity to present witnesses. At the indirect criminal contempt hearing, the trial judge made the following findings of fact on the record in open court:

THE COURT: The file reflects that a notice was mailed on the 26th of May, certified by the Deputy Clerk, mailed to 1009 Ivey Lane, which was the address given for Mr. Gidden and is, in fact, by his own testimony the address that he lived at the time. There's no return of that, and it's presumed to have been received at that address by having been mailed.

[DEFENSE COUNSEL]: There's no proof, Your Honor, that it actually had been mailed. That's just a notice listing all of the parties involved.

THE COURT: There's a certification signed by the clerk certifying that it was mailed, "this 26th day of May, 1988."

Also, a copy went to Moncrief Bonding. And Moncrief Bonding ultimately forfeited a thousand dollar bond on Mr. Gidden when he failed to appear in court.

And I have a feeling that the Moncrief Bonding, had they been able to find Mr. Gidden, would have certainly supplied him to the court, if he were available, rather than forfeiting a thousand dollars bond.

The court makes a determination that there is no good cause to show why you should not be held in contempt for failure to appear.

The court finds that you are in contempt and sentences you to 90 days in the Orange County jail, to run consecutive to any other sentence; no credit for time served.

You should be advised [you have] the right to appeal the judgment and order of the court. If you appeal, it must be taken within 30 days.

The trial judge made no written findings of fact in the judgment of guilt on the contempt charge.

On appeal, Gidden contended that, like a judgment of direct criminal contempt, a judgment of indirect criminal contempt must contain a recital of facts upon which the adjudication of guilt is based. The Fifth District Court of Appeal, sitting en banc, disagreed and affirmed the trial court's judgment. The district court found that the purpose of rule 3.840(a)(6) governing indirect criminal contempt is fulfilled when, as here, sufficient oral findings are made on the record. In so ruling, the district court stated: "As promulgated by the supreme court, Rule 3.840(a)(6) provides only that a court 'should' include a finding of facts in its order. Where, as here, sufficient oral findings are made on the record, the purpose of the rule is fulfilled and written findings are discretionary, not mandatory." Gidden, 593 So.2d at 294-95. We agree.

Rule 3.830 governing direct criminal contempt requires that "[t]he judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based." (Emphasis added.) On the other hand, rule 3.840(a)(6) governing indirect criminal contempt merely states: "There should be included in a judgment of guilty a recital of the facts...." ² (Emphasis added.) To properly comprehend the distinction between these two requirements, it must be understood that the rules governing direct criminal contempt and indirect criminal contempt proceedings cover two very different proceedings.

Direct criminal contempt results from conduct committed in the actual presence of a judge and, consequently, may be punished summarily by the judge who saw or heard the conduct constituting the contempt. Because the contemptuous conduct may well be in the form of statements or actions that are not part of a court proceeding and that are not recorded, rule 3.830 provides that the "judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based." (Emphasis added.)

In contrast, indirect criminal contempt under rule 3.840 concerns conduct that has occurred outside the presence of the judge. Consequently, as reflected by the substantial requirements of rule 3.840, the indirect criminal contempt process requires that all procedural aspects of the criminal justice process be accorded a defendant, including an appropriate charging document, an answer, an order of arrest, the right to bail, an arraignment, and a hearing. A defendant is entitled to representation by counsel, may compel the attendance of witnesses, and may testify in his own defense. The entire proceeding is conducted in open court and made a part of the record.

As noted by the district court, the purpose of rule 3.840(a)(6) is to advise the defendant of the basis for the judgment and to permit meaningful appellate review. The same is true of rule 3.830. However, given the procedural safeguards implicit in the due process afforded under rule 3.840, the rule's purpose is fulfilled when sufficient oral findings are made on the record. In this case, because there is a sufficient record of the proceedings and sufficient oral findings, we see no prejudice to the defendant and no need to mandate a separate written finding of fact in the judgment of guilt.

Accordingly, we approve the decision of the Fifth District Court of Appeal in the instant case and...