Puleo v. State

• Decision Date: 06 February 1959
• Docket Number: No. 901,901
• Citation: 109 So.2d 39
• Parties: Sam PULEO, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 39

109 So.2d 39

Sam PULEO, Petitioner, v. STATE of Florida, Respondent.

No. 901.

District Court of Appeal of Florida, Second District.

Feb. 6, 1959.

Rehearing Denied March 5, 1959.

John B. Minardi, Fred C. Barksdale, Tampa, for petitioner.

Richard W. Ervin, Atty. Gen., Reeves Bowen, Asst. Atty. Gen., and James M. McEwen, State's Atty., Tampa, for respondent.

ALLEN, Judge.

Sam Puleo was adjudged in contempt of court by the Judge of the Criminal Court of Record of Hillsborough County and was ordered to serve six months in the county jail of Hillsborough County, Florida. An appeal was taken to the Circuit Court of the 13th Judicial Circuit of the State of Florida, in and for Hillsborough County, Florida. The circuit court entered an order on the 6th day of August, 1958, dismissing the appeal on jurisdictional grounds, and from this order, a petition for certiorari was filed in this court.

The petitioner states the point involved as follows:

'Does the Circuit Court, in and for Hillsborough County, Florida, have appellate jurisdiction to consider an appeal form the Criminal Court of Hillsborough County, Florida, from a conviction of contempt of court?'

Section 38.22, Florida Statutes, F.S.A., authorizes every court to punish contempts against it, whether such contempts be direct, indirect, or constructive, and in any such proceeding the court is authorized to proceed to hear and edtermine all questions of law and fact. The punishment imposed by a justice of the peace is limited to a fine of $20 or imprisonment of twenty-four hours, but no limitation appears upon the extent of punishment in other courts.

Chapter 932, Section 3, Florida Statutes, F.S.A., provides:

'Said counts, in the exercise of their criminal jurisdiction may punish for contempts as in the exercise of their civil jurisdiction, and the criminal courts of record shall possess, in this respect, the same powers as the circuit courts.'

The theory of the petitioner in this case is that since the judge of the criminal court of record limited the sentence to six months in jail, a sentence comparable to that often given for conviction of a misdemeanor, the circuit court would have jurisdiction on the appeal. This contention would be more logical if the court had had jurisdiction to mete out punishment for contempt not exceeding the punishment under our statute for misdemeanors, but such is not the case in this State. Many of our criminal statutes authorize the court, in felony cases, to sentence one convicted thereunder either to jail, to the state penitentiary, or to pay a fine. Among such statutes are F.S.A. § 799.01, relating to bigamy, and F.S.A. § 798.01 and § 798.02, relating to adultery and to lewd and lascivious conduct.

Justification for the petitioner's position can be found in various cases outside of the State of Florida, but in such cases studied by this court, either the State Constitution or state statutory law provides the menthod for appeal. For insance, in the case of Cannon v. State, 1936, 58 Okl.Cr. 451, 55 P.2d 135, 138, the Court said:

'Section 25 of the Bill of Rights (article 2) abrogates the doctrine that proceedings to punish for contempts are sui generis. There is perhaps no other state with a Constitution containing a provision similar to this provision. So it may be said that this contitutional provision is sui generis.'

In the case of Holt v. McLaughlin, 1948, 357 Mo. 844, 210 S.W.2d 1006, 1007, it was held that there could be no appeal from a judgment rendered on a finding of guilty of contempt in a proceeding for criminal contempt. The Court, in its opinion, said:

'And contempts may partake of both civil and criminal nature. Carder v. Carder, supra [Mo.App., 61 S.W.2d 388]. The contempt involved in the case of State ex rel. Chicago, B. & Q. R. Co. v. Bland, supra [189 Mo. 197, 88 S.W.2d 28], is an example. In that case one Gildersleeve had been adjudged guilty of contempt in the circuit court for violating an order enjoining him from engaging in a particular business. The injunction order had been entered by the circuit court for the protection of the rights of relator who was plaintiff in the circuit court injunction proceeding. The contempt judgment was remedial and primarily for the benefit of relator with the purpose of preventing defendant's future encroachments upon the rights of relator as protected by the injunction order. So the contempt was primarily civil in nature and, although the judgment in the contempt proceeding also involved the dignity of the court below and was in that respect criminal, the contempt judgment was held appealable.'

The Court further stated that since no provision was made for an appeal by statute for a criminal contempt, a full review of such proceedings would be afforded by habeas corpus.

In Florida Cent. & P. R. Co. v. Williams, 1903, 45 Fla. 205, 33 So. 991, 992, the supreme Court held that an appeal would not lie from an order of the circuit court merely imposing fine for contempt for the violation of an injunction granted in a chancery cause. The Court, in its opinion, said:

'In Caro v. Maxwell, 20 Fla. 17, it was held that an appeal does not lie from an order of the circuit court imposing a fine for a contempt in violating an injunction. The question was directly involved in the case, and many authorities are cited to sustain the proposition. In Palmer v. Palmer, 28 Fla. 295, text 300, 9 So. 657, 658, the court refers to the rule announced in Caro v. Maxwell, and says: 'We may remark that, where the judgment is void as for want of jurisdiction of the court, the remedy is by habeas corpus, and where it is merely irregular or erroneous there is no appeal or other right of review. Church on Habeas Corpus, c. 23. Judgments for contempt cannot be reviewed by appeal or writ of error for mere irregularity or error. They can be assailed only for illegality, and this, it seems, must be by habeas corpus. In Ex parte Senior, 37 Fla. 1, 19 So. 652, 32 L.R.A. 133, it was held that habeas corpus is an appropriate remedy for testing the question of the jurisdiction of a circuit court to punish a witness for contempt in refusing to answer questions. There the case of Caro v. Maxwell is again referred to as holding that a contempt order will not be reviewed on appeal or writ of error. See, also, Ex parte Edwards, 11 Fla. 174. The clear effect of these decisions is to hold that an order adjudging a party guilty of contempt cannot be reviewed by any other court for mere errors or irregularities, that generaly no appeal lies form such an order, but that the question of jurisdiction to make it can be inquired into by writ of habeas corpus; and our habeas corpus statute (section 1775, Rev.St.1892 [F.S.A. § 79.06]) seems to recognize habeas corpus as an appropriate remedy, by declaring the extent of the relief to be granted where the party is imprisoned for contempt. There has been no statutory extension of the right of appeal since these decisions were rendered, and we must hold that the appeal here taken comes within the rule annouced in Caro v. Maxwell, and must therefore be dismissed.

'There are cases which hold that where contempt proceedings are resorted to in the ordinary course of chancery practice as a means of enforcing the payment of money decreed to a complainant, or to compel the performance of some act required by a decree to be done for his benefit, an appeal will lie from the decree made therein. To this class of cases Sanchez v. Sanches, 21 Fla. 346, may be assigned. * * *'

In McCall v. Lee, 1913, 66 Fla. 14, 62 So. 902, the Court held that an appeal would not lie from an order punishing a party for contempt for a violation of an injunction granted in a chancery case, and the remedy, if any, would be habeas corpus for an illegal imprisonment.

The State forcibly argues that contempt is not a crime even though certain contempts are designated by the courts as criminal in nature. It states:

'* * * Instead of being a crime, contempt is 'sui generis' and it is not strictly either civil or criminal even though courts have classified them as 'civil' and 'criminal.' We quote from Dangel on Contempt, page 5, Section 12 (a text cited with approval by the Supreme Court of Florida in Lewis v. Lewis, 78 So.2d 711, 712):

"Proceedings for contempt are sui generis (of their own class) in their nature and not strictly either civil or criminal, as those terms are commonly used. But courts have classified and termed them, 'civil' and 'criminal."'

The proper forum for review of contempt orders in Florida and elsewhere has been a matter of deep concern, as will be seen from the following citation: 12 Am.Jur., Contempt, § 80, page 445, which is as follows:

'The general rule at common law does not permit a proceeding for contempt to be revised by a higher court upon an appeal or writ of error. The right of review in this country, however, has gradually been extended by either statute or judicial decision until now generally a judgment in contempt can be appealed from by appeal or error proceedings, habeas corpus, or prohibition. * * *'

See also 6 Fla.Jur., Contempt, § 58, page 616; 4 F.L.P., Contempt § 27, page 623; and also an excellent article on 'Contempt of Court in Florida,' 9 Miami L.Q. page 281, et seq.

In Miller v. Miller, 1926, 91 Fla. 82, 107 .so. 251, the Supreme Court of Florida held that an appeal would not lie from a commitment or fine for violation, or for refusal to comply with, an order of the court made in due course and within the jurisdiction of the court. In Jones v. King , 1935, 120 Fla. 87, 162 So. 353, it was held that habeas corpus proceedings afforded the only proper remedy.

In Seaboard Air Line Ry. v. Tampa Southern Ry., 1931, 101 Fla. 468, 134 So. 529, the apparent holding was to the effect that civil contempt actions were reviewable, but provably not so in criminal contempt actions.

In Pennekamp v. Circuit Court, etc., 1945, 155 Fla. 589, 21...