State v. Diaz De La Portilla

• Decision Date: 05 November 2015
• Docket Number: No. SC14–1625.,SC14–1625.
• Citation: 177 So.3d 965
• Parties: STATE of Florida, Petitioner, v. Alex DIAZ DE LA PORTILLA, Respondent.
• Court: Florida Supreme Court

177 So.3d 965

STATE of Florida, Petitioner,

v.Alex DIAZ DE LA PORTILLA, Respondent.

No. SC14–1625.

Supreme Court of Florida.

Nov. 5, 2015.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, FL, for Petitioner.

Miguel Angel Diaz de la Portilla of Arnstein & Lehr LLP, Miami, FL; Ricardo R. Corona and Ricardo Manuel Corona of the Corona Law Firm, P.A., Miami, FL, for Respondent.

LEWIS, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Diaz de la Portilla v. State, 142 So.3d 928 (Fla. 1st DCA 2014). In its decision the district court ruled upon the following question, which the court certified to be of great public importance:

Whether a party who is ordered by a trial court to appear at a scheduled hearing, but fails to do so, may be found in direct criminal contempt under Florida Rule[ ] of Criminal Procedure 3.830 ; or whether such conduct should be addressed as indirect criminal contempt under Florida Rule[ ] of Criminal Procedure 3.840 ?

Id. at 935. Both Diaz de la Portilla and the State take the position that the failure to appear pursuant to an order should be treated as indirect criminal contempt under rule 3.840. We agree. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

BACKGROUND

This criminal contempt matter arises from the failure of Respondent Alex Diaz de la Portilla to appear pursuant to a court order at a hearing on a motion to hold him in contempt during a dissolution of marriage proceeding. During the dissolution proceeding, Diaz de la Portilla was ordered to deliver one of two dogs owned by the couple into the wife's custody, which he failed to do. Diaz de la Portilla, 142 So.3d at 929. As a result, the wife filed a motion for contempt. Id. A hearing on the motion was scheduled, and the trial court issued an order to show cause that directed Diaz de la Portilla to appear. Id.

During the hearing on the motion for contempt, at which Diaz de la Portilla did not appear, the trial court held him in civil contempt for failure to comply with the order to transfer the dog to his wife. Id. The court ordered Diaz de la Portilla to comply with the order or be committed to jail for thirty days. Id. However, Diaz de la Portilla still did not transfer the dog, and another motion for contempt was filed. Id. The motion was served on counsel for Diaz de la Portilla, and at a subsequent hearing on the motion, only counsel for Diaz de la Portilla was present, not Diaz de la Portilla himself. Id. No explanation was provided for his absence. Id. at 929–30.

The trial court verbally held Diaz de la Portilla in civil contempt for failure to comply with the order to appear, as well as the order to transfer the dog. Id. at 930. The trial court also held Diaz de la Portilla in criminal contempt, explaining:

At this juncture in this case it is my opinion that it is no longer practical, no longer possible for me to coerce compliance because your client is not going to do it. He is going to absent himself; he is going to continue to vilify his wife; he is going to continue to thumb his nose at this Court and to challenge my authority to enforce not only my Orders but the Orders of [the predecessor judge.] ... Based upon the sworn Motion and the sworn testimony today I find him to be in civil contempt for not appearing today and not giving the dog to [his wife] as per [the predecessor judge's] Order.... In addition, based upon the fact that I have ordered him to appear and he has not appeared here today I find him in direct criminal contempt.

Id. (some alterations in original). Additionally, the trial court issued a written Order of Direct Criminal Contempt and Warrant for Commitment that stated, in relevant part:

WHEREAS, this Court held a hearing on said Order to Show Cause on August 23, 2011, with counsel for Petitioner/Wife and Petitioner/Wife appearing; Counsel for Respondent/Husband appearing but without his client and offering no explanation or reason as to why his client was not present as directed, and presenting no legal or factual basis for said non-appearance; and

WHEREAS, this Court having no ability to inquire of the Respondent/Husband as to any issues due to his [willful] non-appearance, and having personal knowledge of his failure to appear; and

WHEREAS, the Court was unable to inquire of the Respondent/Husband as to why he should not be adjudged guilty of Direct Criminal Contempt; and

...

WHEREAS, sworn testimony was taken from Petitioner/Wife that Respondent/Husband had still not complied with the prior Orders of this Court by delivering her one of the dogs, and finding the Respondent/Husband still has the dogs, thereby giving him the ability to comply with the prior Orders of this Court; and

...

WHEREAS, the Court found that the actions of Respondent/Husband were [willful] contempt that occurred beyond a reasonable doubt directly in the presence of the Court and warranted appropriate sanctions; and

WHEREAS the Court has complied with Rule 3.830 in this finding and process, and failure to appear can be Direct Criminal Contempt Bouie v. State, 784 So.2d 521 (Fla. 4th DCA 2001) ; Speer v. State, 742 So.2d 373 (Fla. 1st DCA 1999) ; Porter v. Williams, 392 So.2d 59 (Fla. 5th DCA 1981) ;

NOW, THEREFORE, in consideration thereof, it is

ORDERED AND ADJUDGED that Respondent/Husband, ALEX DIAZ DE LA PORTILLA, is guilty of Direct Criminal Contempt of this Court for his failure to appear at [the] hearing herein on the Order to Show Cause, as directed by the Order to Show Cause served on his counsel on August 4, 2011 (served on counsel due to the Court having no knowledge as to the current whereabouts of Respondent/Husband).

During the appeal of the criminal contempt order, the State was joined as an indispensable party and it recommended that the failure to appear in court be treated as indirect, rather than direct, criminal contempt. Diaz de la Portilla, 142 So.3d at 931, 933. Based on prior precedent, the First District held that the failure to appear pursuant to an order constituted direct criminal contempt. Id. at 933 (citing Speer, 742 So.2d at 373 ). However, the district court concluded that the evidence was insufficient to establish criminal contempt because there was no evidence regarding whether Diaz de la Portilla knowingly failed to attend the hearing without an excuse—an element of the offense. Id. Accordingly, the district court reversed the conviction, but certified the above-quoted question to be one of great public importance.¹ Id. at 935.

ANALYSIS

Direct Criminal Contempt

This Court has previously explained the difference between direct and indirect criminal contempt:

Where the act constituting the contempt is committed in the immediate presence of the court, this contempt is defined as direct. Where an act is committed out of the presence of the court, the proceeding to punish is for indirect (sometimes called constructive) contempt. A review of the Rules of Criminal Procedure ... reflects the greater procedural due process safeguards imposed when proceedings are for indirect criminal contempt.

Pugliese v. Pugliese, 347 So.2d 422, 425 (Fla.1977). Direct criminal contempt, also referred to as summary contempt, see Scott v. Anderson, 405 So.2d 228, 237 (Fla. 1st DCA 1981), is governed by Florida Rule of Criminal Procedure 3.830, which provides for limited procedural protections:

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 on which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against the defendant and inquire as to whether the defendant has any cause to show why he or she 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.

In contrast, rule 3.840, governing indirect criminal contempt, requires additional procedural protections be provided to the person being held in contempt. See Pugliese, 347 So.2d at 425.

The United States Supreme Court explained the purpose and parameters of summary contempt in Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925). In Cooke, an attorney wrote a derogatory letter to a trial judge questioning his impartiality and requesting that he recuse himself. Id. at 532, 45 S.Ct. 390. After the trial court confirmed that the attorney wrote the letter, it found him to be in contempt without allowing him to present a defense or mitigation. Id. at 537–38, 45 S.Ct. 390. However, the Supreme Court determined that the circumstances did not warrant the use of summary procedures because the defiance did not occur in open court. Id. at 534, 45 S.Ct. 390. The Supreme Court explained:

To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court's dignity and authority is necessary.

Id. The Supreme Court reasoned that routine due process requirements were not necessary in cases involving conduct in open court viewed by the judge, and the need for immediate vindication of the dignity of the court justified bypassing normal procedural due process requirements. Id. at 536, 45 S.Ct. 390. However, the Supreme Court concluded that there would be no justification for a departure from normal procedures when the contempt did not occur in open court. Id. at 537, 45 S.Ct. 390. The Supreme Court later commented that where...