Jamason v. State

• Decision Date: 23 March 1983
• Docket Number: No. 82-565,82-565
• Citation: 447 So.2d 892
• Parties: John H. JAMASON and James Gabbard, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 892

447 So.2d 892

John H. JAMASON and James Gabbard, Appellants, v. STATE of Florida, Appellee.

No. 82-565.

District Court of Appeal of Florida,

Fourth District.

March 23, 1983.

David Roth of Cone, Wagner, Nugent, Johnson, Hazouri & Roth, and Larry Klein, West Palm Beach, for appellants.

Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.

Leon St. John, Florida Criminal Defense Attys' Ass'n, West Palm Beach, as amicus curiae.

HERSEY, Judge.

Appellants, law enforcement officers, were adjudged guilty of criminal contempt and were each fined $500.00. The contempt consisted of refusal to comply with the telephonic order of a circuit court judge to produce and bring before her an individual in the custody of appellants. Custody terminated before a formal writ of habeas corpus could be served. After notice and a hearing the judge entered the order under review here.

These skeletal facts need fleshing out in order to place the important issues in proper perspective. In brief: On January 18, 1982, at approximately 9:30 a.m., Judge Rosemary Barkett received a telephone call from Steven Gomberg, an attorney in private practice. Attorney Gomberg explained to Judge Barkett that he had been retained by the wife of one John Melody, who was being detained at the West Palm Beach Police Department. Attorney Gomberg stated that appellant Gabbard (a lieutenant with the West Palm Beach Police Department) had refused his request to see John Melody.

Mr. Melody was, in fact, in custody as a suspect in a rape case. He had been advised of his constitutional rights and had made no request to consult with counsel or to contact anyone.

On the basis of the call from attorney Gomberg, Judge Barkett telephoned appellant Gabbard and stated that she was "issuing an oral writ of habeas corpus to bring John Wayne Melody before me immediately." Appellant Gabbard declined to comply and the judge asked to speak to appellant Jamason (Chief of the West Palm Beach Police Department) who also refused to comply with the oral order. Appellants did not doubt that the person issuing the oral order was Judge Barkett.

At about 12:15 p.m. a formal writ of habeas corpus was served on Major Mann of the West Palm Beach Police Department; however, Melody was no longer in the custody of that Department. He had been transferred to the Palm Beach County Jail for booking. Appellants allege that if Melody had been in their custody at the time the written writ was served, they would have complied with it.

In fact, appellants (through Major Mann of the Police Department) informed personnel at the county jail of the issuance of the writ and sent a copy of it to the jail. At some point in time after the oral order was issued, a written petition for a writ of habeas corpus was filed.

The question to be answered by these appellate proceedings is whether the willful refusal to obey a telephonic order (in the nature of a writ of habeas corpus) issued by a court of general jurisdiction and based upon an oral application therefor by an attorney for the individual said to be illegally restrained, may constitute criminal contempt.

The first important issue to be determined is whether, and if so under what circumstances, an oral order of a court of general jurisdiction may be disregarded with impunity. The clear answer is that only if an order is entered in a matter concerning which the court has no jurisdiction may such an order be safely ignored. The corollary of that rule is that whether an order be totally erroneous or irregular or even unconstitutional, its violation may constitute a criminal contempt. We explained this rule at length in Sandstrom v. State, 309 So.2d 17, 20 (Fla. 4th DCA 1975), quoting Anno: Contempt--Disobeying Invalid Decree, 12 A.L.R.2d 1059, 1107.

Where the court has jurisdiction over the subject matter and the parties and has the authority or power to render the particular order or decree, the fact that such order or decree, violation or disobedience of which is made the basis of the contempt charge, is erroneous or irregular or improvidently rendered, does not justify the defendant in failing to abide by its terms, and his conduct in failing to do so may be punished as for contempt despite the error or irregularity. It is almost unanimously agreed that if the defendant desires to attack the order or decree as erroneous, he must do so, not by disregarding or violating it and then setting the error up as a defense to a charge of contempt, but by attacking the order on direct appeal or by motion to set it aside. He cannot attack it collaterally upon an appeal from the judgment of contempt or upon an application for habeas corpus to be released from imprisonment for contempt. He must obey the order so long as it is in effect and until it is dissolved by the court issuing it, or reversed on appeal by the appellate court.

The rule is not the progeny of the arrogance of the judiciary but a safeguard of the rights of citizens to have their lives, their property and their freedom protected from attack from any source by an independent and impartial court guided by a system of enshrined laws. Its rationale was more fully explored by the Fifth Circuit Court of Appeals in United States v. Dickinson, 465 F.2d 496, 510 (5th Cir.1972):

The criminal contempt exception requiring compliance with court orders, while invalid nonjudicial directives may be disregarded, is not the product of self-protection or arrogance of Judges. Rather it is born of an experience proved recognition that this rule is essential for the system to work. Judges, after all, are charged with the final responsibility to adjudicate legal disputes. It is the judiciary which is vested with the duty and the power to interpret and apply statutory and constitutional law. Determinations take the form of orders. The problem is unique to the judiciary because of its particular role .... the deliberate refusal to obey an order of the court without testing its validity through established processes requires further action by the judiciary, and therefore directly affects the judiciary's ability to discharge its duties and responsibilities. Therefore, 'while it is sparingly to be used, yet the power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law. Without it they are mere boards of arbitration whose judgments and decrees would be only advisory.'

There are two significant jurisdictional events involved in the present case, both of which raise issues which appear to be matters of first impression in this jurisdiction.

The first is whether jurisdiction of the subject matter in a habeas corpus proceeding is properly invoked by an oral application. Chapter 79, Florida Statutes (1981), studied in a vacuum, would dictate a negative reply to this inquiry. We may not stop there, however. The great writ has its origins in antiquity and its parameters have been shaped by suffering and deprivation. It is more than a privilege with which free men are endowed by constitutional mandate; it is a writ of ancient right.

The great writ, known commonly by the name of habeas corpus, was a high prerogative writ known to the common law, the object of which was the liberation of those who were imprisoned without sufficient cause. See Ex-parte Watkins, 3 Pet. (28 U.S.) 193, 7 L.Ed. 650.

It is a writ of inquiry upon matters of which the State itself is concerned in aid of right and liberty. State v. Michel, 105 La. 741, text 747, 30 South.Rep. 122, 54 L.R.A. 927; Ex parte Coupland, 26 Tex. 386.

The name of the writ is "habeas corpus ad subjiciendum et recipiendum." It is not an action or suit but is a summary remedy open to the person detained. It is civil rather than criminal in nature and is a legal and not equitable remedy. See Ex-parte Watkins, supra; Ex-parte Bollman, 4 Cranch (8 U.S.) 75, 2 L.Ed. 554.

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[W]hile the writ had been in use in England from remote antiquity it was often assailed by kings...