State Ex Rel. Trezevant v. Mcleod

Decision Date18 November 1936
Citation126 Fla. 229,170 So. 735
PartiesSTATE ex rel. TREZEVANT v. McLEOD, Sheriff.
CourtFlorida Supreme Court

Original habeas corpus proceeding by the State of Florida, on the relation of Daniel H. Trezevant, against J. R. McLeod, as sheriff of Hillsborough County, Florida.

Petitioner discharged.

COUNSEL Edwin L. Bryan and Zewadski & Pierce, all of Tampa, for petitioner.

Gibbons & Gibbons, of Tampa, for respondent.

OPINION

DAVIS Justice.

We hold that the order of commitment is void for indefiniteness and that the petitioner should be discharged.

Under section 4162, C.G.L., section 2535 R.G.S., a refusal to obey any legal order, mandate, or decree given by a circuit judge either in term time or in vacation relative to any business of the court, after due notice thereof, is punishable as a contempt.

In the case now before us the circuit judge, after proper notice to defendant, found him guilty of refusal to abide by an order of the circuit court requiring him to pay alimony and thereupon ordered him to be committed to jail for his contempt until he complies with the order of the court, or until the further order of the court.

The question arising in habeas corpus, brought to challenge the commitment order, is whether or not the order can be enforced, in view of its indefiniteness as to the terms of imprisonment for which the condemned is to be committed.

Under the most respectable authority on contempt that we have been able to find, a 'process' contempt commitment for refusing to obey an order of court must be based on an affirmative finding that it is within the power of the defendant to obey the order, and such finding must be made to appear on the face of the order of commitment, else it is void. Ex parte Cohen, 6 Cal. 318; Repalje on Contempt, par. 129. The order here involved is not an order of that nature.

The contempt order issued in this case appears to be predicated solely on a finding of past noncompliance with the court's order, and not on any present failure to comply therewith, although able so to do. Therefore the contempt being in its nature a punishment for what the defendant has heretofore done, is void because it specified no definite term of imprisonment. People ex rel. Hinckley v Pirfenbrink, 96 Ill. 68; Ex parte Alexander, 2 Am.Law.Reg. (O.S.) 44; Whittem v. State, 36 Ind 196; In re Hammel, 9 R.I. 248; Yates v. People 6 Johns. (N.Y.) 337.

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22 cases
  • Faircloth v. Faircloth, W--506
    • United States
    • Florida District Court of Appeals
    • October 29, 1975
    ...We find that the evidence fully supports the contempt commitment entered by the trial judge and we now turn to State ex rel. Trezevant v. McLeod, 126 Fla. 229, 170 So. 735 (1936), which appellant cites in support of his contention that the contempt commitment must reveal on its face an affi......
  • Department of Children and Families v. RH
    • United States
    • Florida District Court of Appeals
    • May 24, 2002
    ...County, 537 So.2d 182 (Fla. 4th DCA 1989)); see also Dowis v. State, 578 So.2d 860 (Fla. 5th DCA 1991). 4. State ex rel. Trezevant v. McLeod, 126 Fla. 229, 170 So. 735, 735 (1936) (holding that a civil contempt order "must be based on an affirmative finding that it is within the power of th......
  • Alves v. Barnett Mortg. Co.
    • United States
    • Florida District Court of Appeals
    • March 5, 1997
    ...in a civil contempt order for incarceration. This practice is probably based on the holding in State ex rel. Trezevant v. McLeod, 126 Fla. 229, 231, 170 So. 735, 735-36 (1936), where the court said: "the contempt ... is void because it specified no definite term of imprisonment." Thus we ca......
  • Ex parte Arapis
    • United States
    • Texas Supreme Court
    • November 20, 1957
    ...Meyers v. Superior Court, etc., 46 Cal.App. 206, 189 P. 109; Ex Parte Cardella, 47 Cal.App.2d 329, 117 P.2d 908; State ex. rel. Trezevant v. McLeod, 126 Fla. 229, 170 So. 735. An opposite view was taken by the Supreme Court of Colorado in In re Popejoy, 26 Colo. 32, 55 P. 1083, 1085. We cho......
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