Pole v. State

Citation198 So.3d 961
Decision Date10 August 2016
Docket NumberNo. 2D14–4776.,2D14–4776.
Parties Ned POLE, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Howard L. Dimmig, II, Public Defender, and Lisa Lott, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.

LaROSE

, Judge.

Ned Pole appeals his conviction and sentence for direct criminal contempt. We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A)

. He argues that he was entitled to counsel at the contempt hearing. The trial court did not comply with the requirements for conducting a direct criminal contempt proceeding under the procedural protections of Florida Rule of Criminal Procedure 3.830. We also conclude that Mr. Pole's conduct, at most, constituted indirect criminal contempt to which the protections of Florida Rule of Criminal Procedure 3.840 apply. Accordingly, we reverse and direct the trial court to vacate the contempt order.

Relevant Facts

The contempt proceeding against Mr. Pole stemmed from a divorce action filed by his wife. The trial court scheduled a final hearing on this civil matter for the morning of September 8, 2014. On September 3, Mr. Pole filed a pro se motion to continue the hearing. He claimed that he was unemployed and unable to obtain counsel. The trial court denied the motion. Our record does not indicate whether Mr. Pole received a copy of the order denying his motion prior to the scheduled final hearing.

Because we do not have a complete transcript of the September 8 proceeding, we can glean what happened only from the text of the contempt order. Apparently, Mr. Pole called the trial court that morning to inquire about his motion to continue; he learned that the trial court had denied the motion. Mr. Pole said that he would be about thirty minutes late for the hearing. Mr. Pole arrived thirty-eight minutes late looking disheveled and acting “somewhat confused.” Mr. Pole disclaimed receipt of an earlier voicemail message notifying him that his continuance request was denied. He volunteered that he had drunk two beers the prior evening. He denied being under the influence of alcohol, medication, or illegal drugs. Yet, Mr. Pole “kept interrupting the Court as the Court explained to him the ruling on his request to continue. His interruptions continued throughout the proceedings.” Rather than initiate contempt proceedings at this point, it appears that the trial court, at Mr. Pole's suggestion, directed him to the drug lab for drug and alcohol testing. The results were negative for drugs, but positive for alcohol; the breathalyzer readings were .208 and .216.

The trial court then informed Mr. Pole that it was conducting a direct criminal contempt hearing as a result of his behavior. The trial court reminded him that he was late and concluded that he was under the influence of alcohol. The conduct “embarrassed, hindered and obstructed th[e] Court in the administration of justice and/or his actions interfered with a judicial function.... [D]ue to his actions, the Final Hearing [in the dissolution action] ha[d] to be continued because the allocated time had expired and ... he was not in a condition to represent himself.”

The trial court gave Mr. Pole an opportunity to show cause why he should not be held in direct criminal contempt. He repeated that he had only two beers the night before. Mr. Pole stated that he did not drive to the courthouse himself because he did not want to violate the law. Mr. Grimm, who had driven Mr. Pole to the courthouse that morning, testified that when he arrived at Mr. Pole's home, Mr. Pole was not ready. Mr. Grimm suspected that Mr. Pole was under the influence of alcohol. The trial court held Mr. Pole in direct criminal contempt, adjudicated him guilty, and sentenced him to fifteen days in jail. On appeal, Mr. Pole argues that the trial court should have given him an opportunity to seek counsel for the contempt hearing.

Plank v. State and the Contemnor's Right to Counsel

Our precedent holds that a contemnor is entitled to counsel in a direct criminal contempt proceeding. Al–Hakim v. State, 53 So.3d 1171, 1174 (Fla. 2d DCA 2011)

; Woods v. State, 987 So.2d 669, 674 (Fla. 2d DCA 2007). The Fourth District agrees. See

Hayes v. State, 592 So.2d 327, 329 (Fla. 4th DCA 1992). However, the First District holds otherwise. See

Plank v. State, 130 So.3d 289, 290 (Fla. 1st DCA 2014). Because of this interdistrict conflict, the supreme court agreed to hear Plank to determine “whether an individual is entitled to counsel in direct criminal proceedings before incarceration is imposed as punishment.” Plank v. State, 190 So.3d 594, 596 (Fla.2016) ; see art. V, § 3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(iv). We anxiously awaited the supreme court's opinion in Plank, hoping for guidance on the conflict issue. The supreme court issued its Plank decision on March 17, 2016. The decision is now final; the mandate issued on April 14, 2016. Apparently, neither the State nor Mr. Plank sought rehearing. See Florida Supreme Court Case Docket: Case Number: SC14–414, Florida Supreme Court, http://jweb.flcourts.org/pls/docket/ds_docket (last visited May 4, 2016).

It is not evident to us, however, that the supreme court resolved the conflict issue. Three justices joined in an opinion concluding that there is no right to counsel in a direct criminal contempt proceeding as long as any incarceration does not exceed six months. Plank, 190 So.3d at 596

. These three justices also concluded that Mr. Plank's conviction should be vacated because his conduct amounted to no more than indirect criminal contempt. Id. One justice concurred in result only. Id. The three remaining justices agreed that Mr. Plank's conduct did not constitute direct criminal contempt and concurred in the opinion to the extent it vacated Mr. Plank's conviction. Id. at 608. These justices, however, thought that Mr. Plank had a right to counsel in a direct criminal contempt proceeding. Id. Thus, six justices joined in an opinion holding that Mr. Plank had not committed direct criminal contempt. No majority joined an opinion resolving the conflict issue.

“Under the Florida Constitution, both a binding decision and a binding precedential opinion are created to the extent that at least four members of the Court have joined in an opinion and decision.” Santos v. State, 629 So.2d 838, 840 (Fla.1994)

(citing art. V, § 3(a), Fla. Const.). “In [this] context ..., a ‘decision’ is the result reached by the Court in the case, as distinguished from the ‘opinion.’ Id. at 840 n. 1. “A concurring in result only opinion indicates agreement only with the decision, that is, the official outcome and result reached, but a refusal to join in the majority's opinion and its reasoning.” Harry Lee Anstead, Gerald Kogan, Thomas D. Hall & Robert Craig Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, 460 (2005) ; see also

Byrd v. State, 880 So.2d 616, 617 (Fla.2004) (holding that First District opinion declaring statute invalid was not the actual decision of the district court because only one of three judges signed it and the other two judges concurred in result—affirming the trial court's denial of Byrd's motion to dismiss—but did not join in the opinion); Floridians for a Level Playing Field v. Floridians Against Expanded Gambling, 967 So.2d 832, 834 (Fla.2007) (holding that vote of an appellate court judge concurring in the judgment without indicating agreement with decision to certify question did not count as agreeing with certification).

Because Plank was a three-three decision on the right to counsel in a direct contempt proceeding, the supreme court, apparently, did not resolve the certified conflict between the First District in Plank and the Second and Fourth Districts in Al–Hakim, 53 So.3d 1171

; Woods, 987 So.2d 669 ; and Hayes, 592 So.2d 327. Because six justices concurred in an opinion concluding that Mr. Plank's conduct did not amount to direct criminal contempt, Plank does not require us to dwell much longer on the conflict issue pressed before the supreme court and raised by Mr. Pole, here.

The Need for an Adequate Record

As guidance for our able and busy trial judges, however, we note, as an initial matter, that to affirm a conviction of direct criminal contempt, “there must be evidence in the record that the trial court complied with the procedural requirements of Fla. R. Crim. P. 3.830

... for prosecuting a direct criminal contempt.” Chamberlain v. Chamberlain, 588 So.2d 20, 23 (Fla. 1st DCA 1991). [T]he contemnor's right to due process require[s] that the trial court ensure that a record is made of a criminal contempt proceeding.... [F]acially sufficient claims on plenary appeal from an adjudication of contempt ... which cannot be refuted by the record will invariably mandate vacation of the judgments.” Blalock v. Rice, 707 So.2d 738, 740 (Fla. 2d DCA 1997) ; see also

Chamberlain, 588 So.2d at 23 (stating that the trial court must “ensure that a record of the entire sentencing proceeding is made and preserved in such a manner that it can be transcribed as needed” (quoting Fla. R. Crim. P. 3.721 )). Our record includes a transcript of only the beginning of the dissolution hearing. The courtroom clerk announced, “And per the Judge we don't need to be on the record.” Both parties acknowledge that the contempt proceeding was not recorded.

Because we do not have a full record of the contempt proceeding, our appellate review is stymied. We recognize that the contempt proceeding against Mr. Pole arose in a civil division of the circuit court. Although a court reporter was present, we are also aware that many civil matters commonly proceed without a court reporter. Because the trial court went forward with a criminal proceeding a different set of rules applied. On this basis, alone, we would be compelled to reverse.

Plank...

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2 cases
  • Doe v. State
    • United States
    • Court of Appeal of Florida (US)
    • 28 Septiembre 2016
    ...law as "the law which creates, defines, and regulates rights, or ... which courts are established to administer"); Pole v. State, 198 So.3d 961, 972, 41 Fla. L. Weekly D1843a, D1846a, 2016 WL 4197955, at *6 (Fla. 2d DCA Aug. 10, 2016) (Casanueva, J., concurring) ("To afford the judicial bra......
  • Brown v. State
    • United States
    • Court of Appeal of Florida (US)
    • 15 Septiembre 2017
    ...April 1, 2016.3 This opinion issued four days before the trial court found Mr. Brown in direct criminal contempt.4 In Pole v. State, 198 So.3d 961, 965 (Fla. 2d DCA 2016), this court explained that because three justices joined in the portion of the Plank opinion concluding that there is no......
1 books & journal articles
  • Crimes
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • 30 Abril 2021
    ...The court further violated appellants due process, since the pro se appellant’s right to counsel would have attached. Pole v. State, 198 So. 3d 961 (Fla. 2d DCA 2016) Trial court erred in finding an attorney in indirect criminal contempt for filing an appendix containing confidential docume......

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