Riggs v. State
| Decision Date | 24 October 1991 |
| Docket Number | No. 91-671,91-671 |
| Citation | 588 So.2d 1019 |
| Parties | Ray Bruce RIGGS, Petitioner, v. STATE of Florida, Respondent. 588 So.2d 1019, 16 Fla. L. Week. D2734 |
| Court | Florida District Court of Appeals |
Petition for Writ of Certiorari. A Case of Original Jurisdiction.
Charles P. Horn, Crystal River, for petitioner.
Robert A. Butterworth, Atty. Gen., Tallahassee, and David S. Morgan, Asst. Atty. Gen., Daytona Beach, for respondent.
DENIED.
Riggs petitions this court for certiorari review of the decision of the circuit court (sitting in its appellate capacity), which affirmed a county court's adjudication holding him in direct criminal contempt and sentencing him to serve ten days in jail. We have jurisdiction. 1 Because I do not think the county court followed Florida Rule of Criminal Procedure 3.830, and because I do not think the act complained of (wearing a T-shirt with a vulgar slogan in traffic court) by itself can constitute criminal contempt, as a matter of substantive due process, I conclude that the circuit court departed from the essential requirements of law, 2 in affirming the contempt adjudication. I would grant the writ and quash the decision below.
The record in this case is sparse but what happened in the county court is substantially clear. Riggs and his attorney (Ms. Friedrich) appeared on a traffic charge, on June 11, 1990. Riggs apparently requested a trial date. After the judge concluded that business, Riggs and his attorney stepped over to the clerk's desk to obtain a trial date. The prosecutor called the next case and the judge addressed the next defendant.
At that point, the judge (apparently for the first time) noticed the writing and picture on the T-shirt Riggs was wearing. The judge called Riggs back before him and inquired: "On the shirt, what does it say?" Riggs replied, "Hauling Ass!" The judge replied: "Do you think that's funny?" Apparently unaware that he had offended the judge, Riggs replied: "Love it."
Riggs' T-shirt depicted four women in the back of a pickup truck. They were wearing thong-type bikini's, with their bare buttocks hanging over the edge of the truck. Inscribed beneath were the two words, "Hauling Ass."
The court responded: "Four women in the back of a pickup truck with their butts hanging out, and it's saying 'Hauling Ass'." Riggs realized then that he was in trouble. He explained: "That's just the way I dress."
At that point, the direct criminal contempt proceeding began:
Riggs' attorney interposed concerning the proper application of the criminal rules. The Court loaned her a copy of rule 3.830.
THE COURT: Sir, I've already decided that for which I'm going, how to treat you (inaudible). I'm now going to ask you to show how why you should not be adjudicated guilty of contempt of court (inaudible). It's a rule, it's rule 3.830, Ms. Friedrich.
Friedrich argued that Riggs' T-shirt was clearly vulgar and in poor taste, but he had not exposed himself, nor had he meant to offend the court. Riggs offered to cover the T-shirt but the court proceeded onwards if somewhat out of order, under rule 3.830.
Riggs explained he holds down three jobs, and has to change between each one. Friedrich suggested Riggs had put the T-shirt on, not realizing what it said. Riggs added he tried walking (to court) but it was hot.
The court rejected Friedrich's poor taste argument, as well as her free speech argument. He adjudicated Riggs guilty of contempt and proceeded on to sentencing.
The judge asked Riggs if he had ever been sent to jail. Riggs admitted he had been arrested for dealing in stolen property, but had not been adjudicated. He successfully completed two years on probation and paid off all his fines.
The court seized upon Riggs' prior criminal record as the reason for the ten-day sentence:
Riggs protested that he would lose his three jobs if he served ten days in jail. Relenting somewhat, the judge directed the prosecution to nolle prosequi Riggs' traffic offense.
In a form order signed by the judge, the reasons for the adjudication of contempt were given as: "prior felony--shirt w/haulin Ass on shirt." Nothing in the order, or expressed in court addressed whether Riggs wore the T-shirt with the intent to upset or disrupt the court proceedings. Nothing in the record suggests Riggs' shirt, in fact, had that effect.
Both kinds of criminal contempt (direct and indirect) involve criminal proceedings which may result in jail terms and/or fines. Persons being so charged are entitled to the safeguards of the basic constitutional rights available to all criminal defendants charged with the violation of criminal statutes. Andrews v. Walton, 428 So.2d 663 (Fla.1983). It is essential that a judge carefully follow the contempt rules because they embody essential prerequisites of due process. 3
For direct criminal contempt proceedings, the court must follow Florida Rule of Criminal Procedure 3.830 which states:
A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by the Court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.
The court in this case roughly followed the rule in most regards. But there are two omissions or departures which in my view, invalidate the adjudication of contempt. The first is the rule's requirement that the judgment include a recital of those facts "on which the court relies to establish the defendant's guilt." There is no finding of fact in the court's judgment that Riggs intended to insult the court or disrupt the proceedings. When circumstances alone are used as the basis for contempt, and where the intent of the defendant is unclear and lack of intent is expressed by him, such a finding is essential. See Stevens v. State, 547 So.2d 279 (Fla. 5th DCA 1989); State v. Butter, 546 So.2d 1171 (Fla. 3d DCA 1989); Harmon v. State, 445 So.2d 349 (Fla. 3d DCA), rev. denied, 453 So.2d 45 (Fla.1984); Thomson v. State, 398 So.2d 514 (Fla. 2d DCA 1981).
The second error is that the court first adjudicated Riggs of contempt and found him guilty before notifying him he was being charged with the offense of criminal contempt. Only after the judge adjudicated Riggs guilty did he then permit Riggs and his attorney to explain or try to mitigate. The judge got the sequence backwards. That requires a reversal. See Walker v. State, 559 So.2d 1164 (Fla. 4th DCA 1990); State ex rel. Garlovsky v. Eastmoore, 393 So.2d 567 (Fla. 5th DCA 1981).
This case is very similar to what occurred in O'Neal v. State, 501 So.2d 98 (Fla. 1st DCA 1987). In O'Neal, the court first said: "... I find you in contempt of court ..." and then asked for an explanation of the defendant's vulgar language which had been directed at a person present in the courtroom who defendant claimed was laughing at him. The defendant then spewed even more vile language at the judge. However, the appellate court held that the rule had to be strictly followed: put defendant on notice first, and allow an explanation; adjudicate second.
A person can be held in direct criminal contempt of court if some act or speech engaged in by that person before the court disrupts the court proceedings, or constitutes disobedience of the court's orders, or directly attacks or insults the court. 4 None of those things occurred here. Riggs was not disruptive. His case had been completed when the judge called him back to read his T-shirt. Riggs did not disobey an order of the court not to wear that T-shirt or any other shirt. In fact, Riggs asked permission to cover it when apprised of the judge's anger. The language used on the T-shirt was vulgar and in gross taste, but it was intended to be a humorous pun. It was not a direct attack on the judge.
In this type of case where the wearing of a vulgar T-shirt is made a criminal act, more than the mere wearing of the shirt is required. It should be shown and so found by the judge that the wearer violated a prior court order and then acted wilfully and in defiance of the court. Or, it should be shown and proven in the record that the defendant consciously intended to upset and defy the court by wearing the shirt. No such finding was made and the record supports a...
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Riggs v. State
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