Payne v. State, 85-873

• Decision Date: 09 April 1986
• Docket Number: No. 85-873,85-873
• Citation: 11 Fla. L. Weekly 820,486 So.2d 74
• Parties: 11 Fla. L. Weekly 820 Ernest PAYNE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 74

486 So.2d 74

11 Fla. L. Weekly 820

Ernest PAYNE, Appellant, v. STATE of Florida, Appellee.

No. 85-873.

District Court of Appeal of Florida,

Fourth District.

April 9, 1986.

Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.

GLICKSTEIN, Judge.

This is an appeal of a final order, finding the defendant guilty of direct criminal contempt. We reverse.

We are empathetic with the trial judge, who was there when the episode occurred. Nevertheless, the trial court heard only an expletive--one word, nothing more--and not the statements which two witnesses heard. Accordingly, his conclusion was not based on what he actually heard, which was insufficient for a finding of direct criminal contempt. Florida Rule of Criminal Procedure 3.830.

While we reverse, nothing in this opinion is meant to prevent the trial court from instituting indirect criminal contempt proceedings in accordance with Florida Rule of Criminal Procedure 3.840. Under this rule appellant should be advised of his right to counsel. See Florida Rule of Criminal Procedure 3.840(a)(4).

LETTS and GUNTHER, JJ., concur.