Wells v. State, 84-1616

• Decision Date: 20 June 1985
• Docket Number: No. 84-1616,84-1616
• Citation: 471 So.2d 620,10 Fla. L. Weekly 1536
• Parties: 10 Fla. L. Weekly 1536 Dennis WELLS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 620

471 So.2d 620

10 Fla. L. Weekly 1536

Dennis WELLS, Appellant, v. STATE of Florida, Appellee.

No. 84-1616.

District Court of Appeal of Florida Fifth District.

June 20, 1985.

Dennis Wells, pro se.

Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

This is an appeal from a judgment punishing appellant, a lawyer, for contempt of court. The judgment required the payment of a small fine for direct criminal contempt for willful violation of a direct order limiting the time for final argument in a jury trial.

Appellant was an assistant public defender representing a person accused of aggravated assault. At the conclusion of the testimony the trial judge inquired of both lawyers as to how much time they wanted for final argument. The dialogue between the two lawyers and the judge appears on the record as follows:

THE COURT: Okay. How much time do you think you'll need? You have opening and closing, Miss Sedgwick.

MS. SEDGWICK: I don't think any more than fifteen minutes.

THE COURT: All right. What about you, sir?

MR. WELLS: I'm going to need more, probably, Judge.

THE COURT: How much time?

MR. WELLS: I anticipate twenty to twenty-five.

THE COURT: I'll give each of you twenty minutes, and I'll give you a five-minute warning. Miss Sedgwick, you can divide your time any way you like. At the end of five minutes I expect you will stop and sit down.

MR. WELLS: May I go ahead and tell Your Honor, I'm going to do my best to comply with what you've told me. I know you're shaking your head, no. But I'll have to do it.

THE COURT: Yes, sir.

MR. WELLS: However, if I'm in the middle of my argument and I haven't been able to substantially represent my client, I want to inform the Court that I will ask for a mistrial.

THE COURT: What you're telling me, that after having been told not to talk longer and you elect to talk longer, that you should get a mistrial because you elect to talk longer?

MR. WELLS: No, sir.

THE COURT: Well, sir, you have been instructed that that is the time that you will have. As an attorney I think you are bound by some reasonable instructions from the Court. You said twenty or twenty-five minutes. And I instructed you that you would have twenty minutes. And now if you're going to talk longer than that and then ask for a mistrial, I'll tell you now that I will not look fairly upon that.

MR. WELLS: I understand that, Your Honor.

THE COURT: So, we'll cross that--I'll give you the instructions that I have indicated. And if you decide that you want to talk longer than that, that's up to you. You won't be allowed to.

MR. WELLS: Yes, sir.

THE COURT: All right. Anything else?

MS. SEDGWICK: No, Your Honor.

THE COURT: Okay.

When appellant had exhausted fifteen minutes of his allotted twenty minutes, the following occurred:

MR. WELLS: I'll have to ask for additional time, Your Honor. I apologize.

THE COURT: We discussed this previously, Mr. Wells.

MR. WELLS: Yes, sir, I understand.

When appellant Wells had addressed the jury for twenty minutes, the following transpired:

THE COURT: Thank you for your comments, Mr. Wells.

MR. WELLS: Your Honor, at this point I would like to be allowed to continue with my argument if I could. There are some matters that--I apologize.

THE COURT: You take as much time as you need, Mr. Wells. I'll talk with you after the jury is dismissed.

MR. WELLS: Yes, Sir, I understand.

THE COURT: No, you don't. But take as much time as you need.

After closing arguments were completed, the court instructed the jury on the law and the jury retired to deliberate its verdict. Immediately after the jury left the courtroom, the court requested appellant Wells to come forward. At this time, the following colloquy occurred:

THE COURT: Mr. Wells, do you recall how much time you asked for during closing?

MR. WELLS: I asked for--if I might, your Honor. I don't want to mislead the court. I told the court that I would try my best at twenty to twenty-five minutes, that I would try my best, your Honor.

THE COURT: Well, you asked for twenty to twenty-five minutes. The state asked for fifteen and I gave each of you twenty minutes per side and explained that to you before you began your closing, and indicated how I would like you to proceed.

By my recollection and my notes, you started at 11:37 a.m. today, by my watch, and you were to speak until 11:52, at which time I gave you five minutes. And you were to stop at 11:57, at which time you indicated you could not complete it. And you finished at 12:05.

Did you understand the court's order?

MR. WELLS: The court's order, your Honor?

THE COURT: That you had twenty minutes to speak.

* * *

* * *

MR. WELLS: I understood you to say that I would have twenty minutes, sir.

THE COURT: At this time is there any reason that you should not be held in direct contempt of court for direct violation of the court's order?

Wells offered no real defense, only that he tried his best to conform to the ruling. The court adjudicated appellant guilty of direct criminal contempt for continuing with his closing argument after the court informed him that his allotted time period of twenty minutes had expired. The court sentenced appellant to pay a fine of $80 plus costs within thirty days of October 12, 1984. We affirm.

Appellant's contention that the lower tribunal erred in limiting his closing argument to twenty minutes is not relevant to this appeal. No one is justified in disregarding court orders merely because he believes them incorrect. Jamason v. State, 447 So.2d 892 (Fla. 4th DCA 1983), approved, 455 So.2d 380 (Fla.1984), cert. denied, 469 U.S. 1100, 105 S.Ct. 768, 83 L.Ed.2d 766 (1985); Health Clubs, Inc. v. State, ex rel. Eagan, 377 So.2d 28 (Fla. 5th DCA 1979), dismissed sub nom., Cataldo v. Eagan, 383 So.2d 1191 (Fla.1980). The erroneousness of a court order is not a defense to contempt proceedings; the remedy for an erroneous order is an appeal. Appellant should have resumed his seat at the twenty minute mark of his closing argument and raised the impropriety vel non of the twenty-minute limitation on appeal. In Sandstrom v. State, 309 So.2d 17, 20 (Fla. 4th DCA 1975), cert. dismissed, 336 So.2d 572 (Fla.1976) and Jamason v. State, the Fourth District Court of Appeal quoted Anno: Contempt-Disobeying Invalid Decree, 12 A.L.R.2d 1059:

It is almost unanimously agreed that if the defendant desires to attack the order or decree as erroneous, he must do so not by disregarding or violating it and then setting the error up as a defense to a charge of contempt, but by attacking the order on direct appeal or by motion to set it aside. He cannot attack it collaterally upon an appeal from the judgment of contempt .... He must obey the order so long as it is in effect and until it is dissolved by the court issuing it, or reversed on appeal by the appellate court.

12 A.L.R.2d at 1107.

Appellant also contends the twenty-minute limitation on his closing argument was a vague, ambiguous, or contradictory order such that he should not be held in contempt for disregarding it. First, the record is clear that appellant understood the court's directive that he address the jury no longer than twenty minutes during his closing argument. Second, the fact that the court did not inform appellant at the twenty minute mark of his argument that he could continue to argue at the risk of being held in contempt did not render the twenty-minute limitation vague, ambiguous, or contradictory. As the transcript reflects, the court in no way modified or receded from its previous order that appellant stop his argument after twenty minutes. ¹ The court merely reminded appellant of their previous discussion, and of the court's order. The court's statement that appellant could take as much time as he needed meant only that the court had ruled and appellant should govern himself accordingly. The court was understandably terse in order to avoid prejudice to appellant's client in front of the jury. In reviewing a judgment and sentence of direct criminal contempt in State ex rel. Garlovsky v. Eastmoore, 393 So.2d 567 (Fla. 5th DCA 1981), this court opined:

We do not believe that an attorney must be specifically admonished, in explicit, kindergarten terms, that he is to follow the trial court's rule. He is expected to know that if he is a lawyer. He should also know, without being...