Kelley v. Rice

• Decision Date: 05 October 2001
• Docket Number: No. 2D01-2528.,2D01-2528.
• Citation: 800 So.2d 247
• Parties: Telisia Shaonte KELLEY, Petitioner, v. Everett S. RICE, Sheriff of Pinellas County, Respondent.
• Court: Florida District Court of Appeals

800 So.2d 247

Telisia Shaonte KELLEY, Petitioner, v. Everett S. RICE, Sheriff of Pinellas County, Respondent.

No. 2D01-2528.

District Court of Appeal of Florida, Second District.

October 5, 2001.

Bob Dillinger, Public Defender, and Joy K. Goodyear, Assistant Public Defender, Clearwater, for Petitioner.

Robert A. Butterworth, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Respondent.

NORTHCUTT, Judge.

Telisia Shaonte Kelley petitions for a writ of habeas corpus. Several hours after her petition was filed in this court—and following our order directing an immediate response from the State—Ms. Kelley was released from custody. The State now urges us to dismiss the petition as moot. Because of the serious errors apparent from the face of the record, and because the trial court is still attempting to exercise nonexistent jurisdiction over Ms. Kelley, we decline to do so. As explained in more detail below, we instead treat the petition as one invoking our certiorari and prohibition jurisdiction and grant relief.

The facts underlying this petition are troubling. Ms. Kelley, an eighteen-year-old woman who apparently has no criminal record, witnessed a violent crime committed against her brother. She remained at the scene and gave a statement to the police, and the alleged perpetrator of the offense was criminally charged. Some six months later the State attempted to subpoena Ms. Kelley and her brother to testify at the accused's trial, but it was unable to locate either of them in order to personally serve them. The first subpoena directed to Ms. Kelley¹ was returned with a notation that she had moved and left no forwarding address. A second one was left at that same address with a woman identified as Ms. Kelley's sister. A third subpoena was again returned from that same address with a notation that Ms. Kelley had moved and left no forwarding address.

Neither Ms. Kelley nor her brother appeared for the accused's trial, and eventually the charges against him were dismissed. Based on the subpoena left with Ms. Kelley's sister, the State sought and Circuit Judge Brandt Downey issued a writ of bodily attachment against Ms. Kelley for failing to appear in court to testify. Pursuant to the writ, Ms. Kelley was arrested several months later. She then was held without bond for four days before she was brought before Judge Downey, who then immediately conducted a summary hearing.

At the start of the hearing, the assistant state attorney discussed the facts of the underlying criminal case and alleged that Ms. Kelley was subpoenaed to testify at the trial but failed to appear. Judge Downey then lectured Ms. Kelley on her failure to appear and inquired whether she had anything to say. She responded that she had not received the subpoena because she was not living at the address where it was served. She assured the judge that if she had received the subpoena she would have come to court. Judge Downey replied that when he had reviewed the court file several months earlier he was convinced that she had been properly served. At no point during the brief hearing did Judge Downey inform Ms. Kelley of the charge against her, advise her that she had a right to counsel, or require the State to submit any evidence to support its allegation that Ms. Kelley intentionally failed to appear in response to a subpoena. Nonetheless, at the conclusion of the hearing Judge Downey found Ms. Kelley in contempt and sentenced her to serve four months in jail. He later signed a written judgment adjudicating her guilty of felony failure to appear. The public defender learned of this and filed the instant petition on Ms. Kelley's behalf.

Because of the serious errors alleged in the petition, we ordered an immediate, same-day response from the State. Shortly after our response order was issued, Judge Downey held a hearing at which he orally vacated Ms. Kelley's judgment and sentence. He initially ordered her held in custody pending the filing of a contempt charge against her, but on the public defender's motion he permitted Ms. Kelley's release on her own recognizance. As a condition of this release, he ordered her to appear at the state attorney's office to give a statement regarding the crime she had witnessed. He warned her that if she failed to do so a warrant would be issued for her arrest. This court was made aware of these subsequent developments through a supplemental petition and response filed here.

JURISDICTION

The State contends we should dismiss the petition as moot because Ms. Kelley has been released from custody. It is true that the matter is technically moot. See Bowles v. Singletary, 698 So.2d 1201, 1202 n. 3 (Fla.1997)

. However, mootness does not destroy a court's jurisdiction if the question raised is of great public importance or is likely to recur, id.; Holly v. Auld, 450 So.2d 217, 218 n. 1 (Fla.1984); Blalock v. Rice, 707 So.2d 738, 739 (Fla. 2d DCA 1997), or if the error is capable of repetition yet evading review. N.W. v. State, 767 So.2d 446, 447 n. 2 (Fla.2000). Because Judge Downey took action to moot this petition apparently in direct response to this court's involvement, and because it appears that in another of his cases the same errors may have been committed and evaded review, we address the merits of the petition.²

We also conclude that we have certiorari and prohibition jurisdiction to review Judge Downey's subsequent actions. Although he vacated Ms. Kelley's conviction and sentence and released her from custody, he did so in an order purporting to release her on recognizance with the condition that she appear at the state attorney's office. But Ms. Kelley has not been charged with contempt or any other crime. Therefore, Judge Downey lacks jurisdiction to release her on recognizance, to condition that release in any manner, or to order her rearrest if she violates those conditions. To the extent that Judge Downey has entered an order in excess of his jurisdiction, we may review it by means of certiorari. See Hudson v. Hofmann, 471 So.2d 117 (Fla. 2d DCA 1985)

. Insofar as Judge Downey has indicated an intent to continue exercising nonexistent jurisdiction over Ms. Kelley, we may prevent him from doing so by way of prohibition. See State ex. rel. Gillham v. Phillips, 193 So.2d 26 (Fla. 2d DCA 1966); Anderson Inv. Co. Ltd. v. Lynch, 540 So.2d 832 (Fla. 4th DCA 1988).

MERITS

Our analysis of the merits turns in part on the nature of Ms. Kelley's conviction. The record is ambiguous in this respect, but it suggests four possibilities. The first is set forth in the written judgment, which purported to adjudicate Ms. Kelley guilty of failure to appear. As such, it was the product of a wholesale denial of Ms. Kelley's rights under the Florida Rules of Criminal Procedure and the Florida and Federal Constitutions. Beyond that, the written judgment conflicts with the judge's oral pronouncement at the hearing. See Driver v. State, 710 So.2d 652 (Fla. 2d DCA 1998)

.

According to the oral pronouncement, the judge found Ms. Kelley guilty of some unspecified variety of contempt. This, in turn, admits of three possibilities: civil, direct criminal, or indirect criminal. We eliminate civil contempt as a possibility because Judge Downey imposed a sentence which was clearly intended to punish and which could not be purged by Ms. Kelley's compliance with the prior court order. See Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977)

.

Determining which category of criminal contempt applies to Ms. Kelley's conviction is more problematic. Direct criminal contempt results from conduct committed in the actual presence of the judge. It may be punished summarily pursuant to Florida Rule of Criminal Procedure 3.840. See Gidden v. State, 613 So.2d 457, 460 (Fla.1993)

. On the other hand, indirect criminal contempt concerns conduct outside the judge's presence and may be punished only after following the procedures set forth in rule 3.840. Gidden, 613 So.2d at 460. Ms. Kelley argues, and the State concedes, that the actions of which she was accused amounted to indirect criminal contempt. If so, the proceedings against Ms. Kelley plainly violated her due process rights as expressly delineated in rule 3.840. See Gidden, 613 So.2d 457; Andrews v. Walton, 428 So.2d 663 (Fla.1983).

Given the paucity of due process protections afforded Ms. Kelley in the court below, it is more likely that Judge Downey proceeded against her on a charge of direct criminal contempt. And, indeed, we have found authority for the proposition that a witness's failure to appear in court in response to a subpoena is direct, as opposed to indirect, criminal contempt. We disagree, but deem it necessary to examine this proposition in some depth.

Direct criminal contempt is defined by rule 3.830 as conduct that the court saw or heard committed in its actual presence. That rule further provides that such conduct may be punished summarily, with the court providing only the limited procedural protections of informing the defendant of the accusation, inquiring whether the defendant can show cause why he or she should not be held in contempt, and affording the defendant an opportunity to present evidence of excusing or mitigating circumstances. Fla. R.Crim. P. 3.830. The rule has been interpreted to allow summary punishment without appointment of counsel or a formal hearing. Williams v. State, 698 So.2d 1350 (Fla. 1st DCA 1997).

In order to understand and apply this seemingly simple definition and rule, it is necessary to consider its constitutional underpinnings. Due process requires that before a person may be convicted and sentenced to jail, she must be afforded reasonable notice of the charges against her and an opportunity to be heard which includes at a bare minimum the right to examine witnesses against her, the right to offer testimony, and the right to counsel. See In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed....