Wiggs v. State, 5D07-3279.

• Decision Date: 09 May 2008
• Docket Number: No. 5D07-3279.,5D07-3279.
• Parties: Jeffrey W. WIGGS, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

981 So.2d 576

Jeffrey W. WIGGS, Petitioner, v. STATE of Florida, Respondent.

No. 5D07-3279.

District Court of Appeal of Florida, Fifth District.

May 9, 2008.

Jeffrey W. Wiggs, Tavares, Pro Se.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Respondent.

PER CURIAM.

Jeffrey W. Wiggs, was found guilty of direct criminal contempt in a proceeding before the Honorable Donna F. Miller, County Judge. He appealed to the circuit court, which affirmed without opinion over Judge Lambert's dissent. Because we find the circuit court's order constitutes a departure from the essential requirements of law, we grant certiorari and quash the order. We do so for the reasons fully and cogently articulated in Judge Lambert's dissenting opinion, which we adopt as our own and set out in full:

The Appellant, Jeffrey W. Wiggs, an attorney licensed to practice law in the State of Florida, has timely appealed the order of the lower court adjudicating him in direct criminal contempt of court. While I do not condone the behavior of the Appellant, I respectfully dissent from the majority opinion because I believe that there was insufficient compliance with the rule pertaining to direct criminal contempt proceedings.

[Florida Rule of Criminal Procedure] governs direct criminal contempt proceedings. The rule reads as follows:

Rule 3.830. Direct criminal contempt.

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.

A criminal contempt proceeding is maintained solely to vindicate the authority of the court or to punish for conduct offensive to the public in violation of court order. May v. State, 623 So.2d 601 (Fla. 2d DCA 1993). The Appellant, Wiggs, appeared before the trial court representing a client on what appeared to be a change of plea proceeding. Because the actions of the Appellant for which the trial court held him in contempt were actions that occurred in the presence of the trial judge, the direct criminal contempt proceeding is appropriate. However, strict adherence to the procedural requirements of Rule 3.830 is absolutely imperative because its provisions constitute the essence of due process. Bauder v. State, 923 So.2d 1223 (Fla. 3d DCA 2006), quoting from Peters v. State, 626 So.2d 1048, 1050 (Fla. 4th DCA 1993). Furthermore, any failure to follow the procedural requirements in contempt proceedings under this rule is fundamental error and an objection in the trial court is not required to preserve the issue for appellate review. Hutcheson v. State, 903 So.2d 1060, 1062 (Fla. 5th DCA 2005); Garrett v. State, 876 So.2d 24, 25 (Fla. 1st DCA 2004). The requirement in the rule that there also be a signed, written order which contains a recital of the facts upon which the adjudication of guilt on the direct criminal contempt matter is based is to assure compliance with the long-standing rule that the powers of contempt should be exercised with care and circumspection. Hutcheson [, 903 So.2d] at 1062, quoting Guardado v. Guardado, 813 So.2d 236, 237 (Fla. 5th DCA 2002). A trial court's failure to afford the defendant an opportunity to present mitigating evidence or to discuss why the trial court should or should not impose a particular sentence, after asking the defendant to show cause why he should not be held in direct criminal contempt, also constitutes fundamental error. Hibbert v. State, 929 So.2d 622 (Fla. 3d DCA 2006).

The limited record in this present appeal reflects that the Appellant was representing a client on a criminal misdemeanor battery charge. The client was tendering a no contest plea to the charge and there became a dispute, at this hearing, as to the terms and conditions of the plea, primarily, whether there would be a withhold of an adjudication of guilt or whether the Appellant's client would be permitted a specified time to complete an anger management course at which time, upon successful completion of the course, a dismissal of the charges would be entered. The confusion apparently stemmed from the fact that the prosecutor who allegedly negotiated the agreement with the Appellant was not the prosecutor who appeared at the change of plea hearing before the trial court. The Appellant expressed frustration, in open court, at the problems toward the resolution of the case and, ultimately, the trial court directed the Appellant to move himself to the state attorney's table and renegotiate what is on the piece of paper (i.e., the plea agreement). When the Appellant began responding to that direction, the trial court inquired as to whether the Appellant was refusing to walk over to the table and renegotiate the deal because, if so, "then we're going to talk contempt of court." The Appellant responded that he was not aware of what he had done contemptuous. Thereafter, the following took place:

THE COURT: Mr. Wiggs, I've ordered you to go talk to the State. If you're saying you're refusing, that's contempt.

MR. WIGGS: Set it for trial, Judge.

THE COURT: Mr. Wiggs, we have a different question here. I ordered you to go talk to the State. If you're refusing, that's contempt.

MR. WIGGS: If I don't want to talk to the State?

THE COURT: Correct.

MR. WIGGS: I'd rather that the matter be set for trial.

THE COURT: Okay, Have a seat and we'll talk about your contempt case in just a moment.

Eventually, during this session, the Appellant's client's case was resolved. Prior to that resolution, the following dialogue took place between the Appellant and the trial court:

MR. WIGGS: Judge, if it may please the Court, I'd like to make something clear, first of all.

THE COURT: Is that an apology?

MR. WIGGS: If you want to consider it one. I don't want to be rude to the Court. Of course, I would apologize —

THE COURT: So you're saying you weren't intending to be rude?

MR. WIGGS: No, I have no intention to be rude to this Court, but I do — Judge, I came in here with a negotiated sentence, and then what I thought was a little awkward was to say to negotiate with the State. I had negotiated this with the State.

After the plea agreement was reached and the case involving the Appellant's client was resolved, the trial court cleared the courtroom and the following occurred:

THE COURT: Okay, Mr. Wiggs, you were incredibly rude. This was not a difficult problem to work out, and the only difficulty occurred because of you. Is there some health issue that's a problem today, that you're not feeling well today?

MR. WIGGS: Ma'am, I feel fine today. I find it —

THE COURT: That's a blessing.

MR. WIGGS: — frustrating to come in here and to have the State just hand me the plea back and say it's an illegal sentence. First and foremost —

THE COURT: Mr. Wiggs, you wrote down a mistake on that piece of paper.

MR. WIGGS: That mistake is not an illegal sentence, though. It does not make it an illegal sentence to say, "Withhold."

THE COURT: Okay, it's an illegal sentence to have a fine and to have a withhold. So if nothing else, that's illegal.

MR. WIGGS: Judge —

THE COURT: So you wrote that down on the piece of paper. I don't know if you wrote it down wrong that caused all this problem or if Miss Manno may have dictated it wrong, but that's an illegal sentence.

MR. WIGGS: Okay.

....

THE COURT: ... Mr. Wiggs, I want a clear, clean apology for your behavior today or we will continue with a contempt of Court.

MR. WIGGS: Judge, I don't —

THE COURT: I want an apology or we'll be having a contempt of court hearing right now.

MR. WIGGS: Would you advise me what would be the basis of the contempt?

THE COURT: Your rudeness to the Court, your refusal to participate in a direct order that you walk across the room and clear up the confusion on this piece of paper.

MR. WIGGS: Judge, if I may please address you. First, I feel that the Court interrupted me several times when I was trying to make a comment to the Court. Okay. I'm not asking for any apology, though, from the Court. Okay. Now, second, the State was taking a different track here today when I extended the plea and just asked that they execute it and said that they were not executing —

THE COURT: Okay, Mr. Wiggs, I find you in direct criminal contempt for refusing to apologize for your rudeness to the Court. There's some question about whether I can fine or not fine. That's up in the air. I'm going to assume that I can. I fine you fifty dollars.... I find you guilty of contempt of court.

The Appellant paid the fifty dollar fine. This does not render the appeal moot because the conviction does impact this Appellant, a licensed attorney, by having a criminal contempt conviction on his record. Bauder . The order of contempt indicated that the Appellant "refused a direct order of the court and the attorney was rude." I believe that this order is defective and fails to recite the facts upon which it is based. See Schenck v. State, 645 So.2d 71 (Fla. 4th DCA 1994); Montoya v. State, 695 So.2d 873 (Fla. 3d DCA 1997) and Hutcheson, supra (reversal required when trial court entered a form order which fails to include any recitation of facts upon which the direct criminal contempt adjudication is based). I also frankly have concerns whether these actions do, in fact, constitute direct criminal contempt of cou...