Plank v. State
| Decision Date | 17 March 2016 |
| Docket Number | No. SC14–414.,SC14–414. |
| Citation | 190 So.3d 594 |
| Parties | Noel PLANK, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Nancy Ann Daniels, Public Defender, and Colleen Dierdre Mullen, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, FL, for Respondent.
The certified conflict issue in this case is whether an individual is entitled to counsel in direct criminal contempt proceedings before incarceration is imposed as punishment. The First District Court of Appeal rejected that argument in Plank v. State, 130 So.3d 289, 290 (Fla. 1st DCA 2014)
, but certified that its decision is in direct conflict with the decisions of the Second District Court of Appeal in Al–Hakim v. State, 53 So.3d 1171, 1174 (Fla. 2d DCA 2011), and Woods v. State, 987 So.2d 669, 674 (Fla. 2d DCA 2007), and the Fourth District Court of Appeal in Hayes v. State, 592 So.2d 327, 329 (Fla. 4th DCA 1992), which all held that a defendant has a right to counsel in direct criminal contempt proceedings before incarceration is imposed as punishment.1
We resolve the conflict, holding in accordance with the First District that a trial court has the discretion, but is not required, to appoint counsel or give the individual an opportunity to seek counsel in a direct criminal contempt proceeding, even if incarceration is imposed as punishment, as long as the period of incarceration does not exceed six months. Nevertheless, because the allegedly contemptuous conduct for which Petitioner Noel Plank was incarcerated in this case did not involve conduct that occurred only in the presence of the court, the trial court erred in classifying the conduct as direct criminal contempt. Plank was therefore entitled to the benefit of counsel and to the procedures set forth in the Florida Rule of Criminal Procedure 3.840
governing indirect criminal contempt. Accordingly, while we approve the reasoning of the First District that there is no requirement to appoint counsel in direct criminal contempt proceedings where a defendant is incarcerated for less than six months, we quash the First District's decision upholding the conviction and direct that Plank's conviction for direct criminal contempt be vacated.
On April 15, 2013, Noel Plank, a prospective juror, appeared for jury duty at the Leon County Courthouse at 11:30 a.m. and was part of a panel that was seated in the courtroom at approximately 1:40 p.m. In response to general biographical questioning, Plank advised the trial judge that he had various issues that would make it difficult for him to serve on the jury:
I work a full day. I work 13 hours on Thursdays, and I have no time or money to sit in court waiting for all of y'all. First of all, I'm going to tell you straight out. I'm antiwar, Vietnam draft card burner, and avoided the Vietnam war. I'm also 4F.
When the judge inquired about the meaning of “4F,” Plank responded:
Unqualified for military. Another thing is I'm antigovernment. I have not voted since Ronald Reagan was president. I'm not even registered to vote. And I'm also, to tell you the truth, I'm a drunk.
The trial judge did not excuse Plank based on those reasons, and jury selection continued. In response to later general questions pertaining to his background, Plank responded as follows:
At some point during jury selection, Plank apparently fell asleep. The other jurors complained that Plank smelled of alcohol and was difficult to awaken at a break in jury selection at about 2:55 p.m. as the other jurors tried to pass by Plank. At the trial judge's direction, a Leon County Probation Officer, Ceressa Haney, then administered a breathalyzer test to Plank around 3 p.m., which was performed outside the presence of the trial judge.
An hour later, at approximately 4 p.m., the trial judge held a contempt hearing regarding Plank's conduct during jury selection. At the hearing, Officer Haney testified that the results from the breathalyzer test demonstrated Plank had a blood-alcohol level of 0.111, and that it is illegal to drive with a blood-alcohol level over 0.08. In addition, Officer Haney testified that she smelled alcohol on Plank's “general person” but could not determine if the smell came from his clothes or his breath. When Plank was given the opportunity to question Officer Haney, he asked only: “What I'd like to know is how I got the smell of beer on my clothes when I never spilt one drop on my clothing.”
At that point, the trial judge asked Plank to come to the microphone. Plank, who apparently was handcuffed by that time, replied that he was having a hard time getting out of the chair himself, especially with “bracelets.” The trial judge then informed Plank that although he arrived for jury duty at 11:30 a.m., his blood alcohol content was still 0.111 more than three hours later, indicating that his blood-alcohol level was even higher when he first arrived at the courthouse. In addition, the trial judge stated that she believed that Plank may have driven to the courthouse, and Plank confirmed that he had. The trial judge provided Plank with the opportunity to explain why he should not be held in contempt, to which Plank stated:
First of all, I was extremely tired. I was up at 1:00 this morning, and I start work at 5:00 in the morning. I had to walk in and out, in and out, in and out of the vehicle every other door, like, from here to your back door there, that distance, and it's very tiring.
In response to the trial judge asking if there was anything else he wanted to tell her, Plank stated:
Other than I can't afford to be—if you got me coming in here to court and all this, that's what I tried telling you before. I don't get paid for coming to court. Okay? I don't get paid for taking time off. Also, I'm about—in the process of losing my house, which I own here in Leon County for, let's see, 13 years. My mortgage company has been giving me a chance to catch up because I missed one month. And my hours have been dropped. I used to make 400 a week. Now I'm making 200 a week. I'm barely making it. That's, that's why I want to get out of court duty, because Thursday is my busiest day. But if you insist, I'll lose my house and everything. I'll be living out on the street with everybody else.
The trial judge stated that although she did not want Plank to lose his house, she wanted him to come to jury duty without being drunk. She then found Plank in direct criminal contempt:
All right. I'm going to find that you're in direct criminal contempt for not only coming to the courthouse drunk but it was also—in doing that, you disrupted the jury selection here this afternoon and distracted other jurors. Other jurors obviously noticed that you smelled of alcohol, were drunk. So I am finding you in contempt.
Before imposing the sentence, the trial judge provided Plank an opportunity to offer any mitigating circumstances, to which Plank responded that he did not know what else to say. The trial judge then sentenced him to thirty days in the Leon County Jail, explaining the sentence as follows:
The trial judge subsequently entered a written order finding Plank guilty of direct criminal contempt for arriving to the courthouse drunk, disrupting jury selection, and distracting the other jurors. In support of this conviction, the order relied on the following actions: when Plank was asked to provide background information, he responded that he should not have to serve on a jury because he was “able to evade the military draft,” worked thirteen-hour days, had a “4F” military designation, and was a drunk; he slept during some of the jury selection and was difficult to awaken; other jurors indicated that...
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