Giles v. Renew
Decision Date | 20 July 1994 |
Docket Number | No. 93-03568,93-03568 |
Citation | 639 So.2d 701 |
Parties | 19 Fla. L. Weekly D1571 John GILES, Appellant, v. Rosemary R. RENEW, Appellee. |
Court | Florida District Court of Appeals |
Ellen S. Masters of Mars & Masters, P.A., Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Mark S. Dunn, Asst. Atty. Gen., Daytona Beach, and Patricia E. Davenport, Asst. Atty. Gen., and Christopher Sierra, Asst. Atty. Gen., Tampa, for appellee.
John Giles appeals an order adjudicating him guilty of indirect criminal contempt and placing him on probation. Because we conclude that the court did not comply with the rule governing indirect criminal contempt, we reverse.
The order in this appeal adjudicated Giles guilty of violating an injunction for prohibition against domestic violence which the court entered in February 1993. The injunction prohibited Giles from entering on or about the residential premises or place of employment of his former wife, Rosemary Renew, and from physically abusing, threatening, or harassing her at any time or place.
On July 22, 1993, the trial court entered an order to appear and show cause directed to Giles regarding indirect criminal contempt. The order failed to set out any facts alleging a violation of the injunction. Although the petition setting forth the allegations is not a part of the record, Giles represents that it charged that he drove by Renew's residence on July 17, 1993. Giles pleaded not guilty to this accusation and requested an evidentiary hearing.
On August 25, 1993, the trial court entered a second order to appear and show cause based upon an amended verified petition of Assistant State Attorney Kelly Butz. The amended petition again alleged that Giles drove by Renew's residence on July 17, 1993. Additionally, it alleged that Giles went to Renew's residential premises on July 10, 1993, and went to the location of her class reunion on August 6, 1993, and August 7, 1993. Giles was not served with the new order or the amended petition.
Thereafter the trial court conducted an evidentiary hearing based upon the order to show cause. When the state attempted to question Renew concerning the allegations relating to August 6th and August 7th, Giles's counsel objected because he had no notice that this matter would be litigated. Giles's counsel only received a facsimile of an unsigned, unverified amended petition and an order to show cause. The court conducted what it termed to be a Richardson 1 hearing and found that Giles was not prejudiced. Thereafter the court permitted Renew to testify concerning the events of early August involving Giles's alleged presence near her class reunion. The court found Giles not guilty of the events occurring in July 1993 and guilty of the incident occurring on August 6 and August 7, 1993.
Rule 3.840 states, in part:
A criminal contempt, except as provided in rule 3.830 concerning direct contempts, shall be prosecuted in the following manner:
(a) Order to Show Cause. The judge, on the judge's own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time...
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...of a court order." Adirim v. City of Miami, 348 So.2d 1226, 1227 (Fla. 3d DCA 1977) (emphasis added).3 See, e.g., Giles v. Renew, 639 So.2d 701 (Fla. 2d DCA 1994) (failure to comply with rule 3.840 fundamental error).4 It is obvious from the facts of Clark that the petitioner Franks was adj......
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Cole v. State, 98-01718
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