Korn v. Korn, 4D14–4341.

• Decision Date: 04 December 2015
• Docket Number: No. 4D14–4341.,4D14–4341.
• Citation: 180 So.3d 1122
• Parties: Christofer KORN, Appellant, v. Donna KORN, Appellee.
• Court: Florida District Court of Appeals

180 So.3d 1122

Christofer KORN, Appellant,

v.Donna KORN, Appellee.

No. 4D14–4341.

District Court of Appeal of Florida, Fourth District.

Dec. 4, 2015.

H. Scott Hecker, Fort Lauderdale, for appellant.

Terry Ellen Fixel of Fixel & LaRocco, Hollywood, for appellee.

CORRECTED OPINION

GROSS, J.

We reverse an order of indirect criminal contempt for two reasons. First, the two and one-half days between the issuance of the order to show cause and the final hearing was not a "reasonable time" for preparation of a defense under Florida Rule of Criminal Procedure 3.840(a). Second, the trial judge violated appellant's privilege against self-incrimination by construing his silence at the contempt hearing as an admission of guilt.

In a divorce proceeding, the court ordered appellant to have no direct or indirect contact with his wife, the appellee. The wife moved for contempt, saying that appellant violated this order. On November 3, 2014, the circuit court entered an order to show cause for indirect criminal contempt "finding" that appellant has "threatened to kill and mutilate his Wife." The order to show cause provided no specifics—date, time, place, method of communication—concerning any threat. The order makes reference to and incorporates the wife's motion for contempt. That motion is also devoid of many specifics.¹ The order to show cause ordered appellant to appear on November 6, 2014 at 3:00 p.m.

On November 5, appellant's lawyer moved for a continuance. She wished to take depositions of "essential witnesses." Having met with appellant for the first time about the order to show cause on November 5, the lawyer said she needed more time to prepare for the criminal contempt hearing.

Before the November 6 contempt hearing began, the appellant's lawyer argued that the motion for contempt was vague and did not contain the offending e-mails and text messages alleged to have been sent. Discovery was necessary, the lawyer argued, to flesh out the charges. Also, appellant's lawyer said that a criminal law attorney had been hired the previous day to handle the contempt charges. The circuit judge ruled that two days was enough time to prepare a defense and denied the motion for continuance.

During the contempt hearing, when the wife's lawyer sought to question appellant about any direct or indirect contact with his wife, appellant invoked his Fifth Amendment right not to testify, on the advice of counsel. At the close of the hearing, the circuit judge found that the appellant failed to comply with the "no contact" order; the judge said that appellant had "invoked the Fifth Amendment right not to incriminate [himself] and not put forth any mitigating evidence, thus this Court draws negative inference from [appellant's] failure to testify."² The court adjudicated appellant to be guilty of contempt and sentenced him to 45 days in jail.

In this case, the concept of due process embedded in Rule 3.840 required that appellant have more than two days to prepare for the contempt hearing.

Controlled by Florida Rule of Criminal Procedure 3.840, indirect criminal contempt is subject to the Florida Rules of Criminal Procedure. See Fla. R. Crim. P. 3.010. An order to show cause must state "the essential facts constituting the criminal contempt charged" and set a time and place for a hearing "with a reasonable time allowed for preparation of the defense after service of the order on the defendant." Fla. R. Crim. P. 3.840(a). Here, the imprecision of the order to show cause—the failure to specifically delineate the "essential facts constituting the criminal contempt"—necessitated more than two and one-half days to prepare a defense. Appellant was entitled to take discovery to prepare to defend against the contempt.

This case is similar to the other cases that have held that two days is not sufficient time to prepare to defend against an indirect criminal contempt charge. See Russ v. State, 622 So.2d 501, 502 (Fla. 5th DCA 1993) (two days after service of order to show cause held insufficient); Goral v. State, 553 So.2d 1282, 1283 (Fla. 3d DCA 1989) (two "actual working days notice of the contempt hearing" held insufficient); see also Gratz v. State, 84 So.3d 1219, 1222 (Fla. 3d DCA 2012) (holding six days notice to defense counsel was "insufficient time for counsel to prepare for final contempt hearing"); Givner v. State, 559 So.2d 466 (Fla. 4th DCA 1990) (holding that serving order to show cause on "the 26th for a contempt hearing on the 29th was insufficient notice"); Woolf v. Woolf, 901 So.2d 905, 911 (Fla. 4th DCA 2005) (holding that two days notice is "insufficient notice" of a civil contempt hearing).

A second basis for reversal is that the trial judge violated appellant's Fifth Amendment right against self-incrimination when she drew a negative inference from his failure to testify.

"The Fifth Amendment to the United States Constitution provides in pertinent part that no person ‘shall be compelled in any criminal case to be a witness against himself[.]’ This protection exists primarily to ‘assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action.’ " Jenkins v. Wessel, 780 So.2d 1006, 1007 (Fla. 4th DCA 2001) (quoting Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975) ).

A defendant in a criminal contempt proceeding is entitled to "the same constitutional due process protections to which criminal defendants are entitled." Pompey v. Cochran, 685 So.2d 1007, 1012 (Fla. 4th DCA 1997). "Among these constitutional...