Judge Justified in Holding Suspect in Contempt

Criminal contempt is a charge rarely seen in Broward County, Florida according to those who work in furtherance of our Florida Criminal Justice System.

According to the Sun-Sentential, this past Thursday, however, an inmate appearing before Judge John “Jay” Hurley was handed a one year contempt sentence for repeatedly cursing the bench.

Judge Hurley is a well-respected judge in Broward and strictly adheres to the law according to local Criminal Defense Lawyers.

He is a good judge, bottom line.

Order in our Florida Courts is paramount. This appears to be a marked lack of respect to our Judiciary. Apparently, this defendant cursed at the judge over 20 times and dropped the F-Bomb repeatedly.

The accused was before Judge Hurley for an alleged violation of a no-contact order issued on a pending Domestic Violence case.

To make matters worse for himself, the accused invited the judge to perform a sex act on him. Hurley replied, “The court is inclined at this time to hold you in contempt of court.”

The general opinion of those present found that Judge Hurley exercised great patience before taking action under contempt statutes. It is unknown if any mental health issues may exist that may mitigate the actions taken by the accused in this case.

Contempt has been defined by the Florida Supreme Court as “Any act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity.” The test is not the physical propinquity of the act to the court, but its tendency to directly affect the administration of justice.” Ex parte Crews, 173 So. 275, 279 (1937) (citations omitted).

Contempt of court is generally classified as being either direct or indirect. Demetree v. State, 89 So. 2d 498, 501 (Fla. 1956). A direct contempt is an insult committed in the presence of the court or of a judge when acting as such, or a resistance of or an interference with the lawful authority of the court or judge in his presence, or improper conduct so near to the court or judge acting judicially as to interrupt or hinder judicial proceedings. Ex parte Earman, 95 So. 755, 760 (Fla. 1923 ); Kress v. State, 790 So. 2d 1207, 1208-1209 (Fla. 2d DCA 2001).

In the absence of any evidence of wilful or deliberate intent to disrupt, it should be rare that the mere use of a word or phrase which may have negative or distasteful connotations will be sufficient to constitute direct criminal contempt. Murrell v. State, 595 So. 2d 1049, 1051 (Fla. 4th DCA 1992).

The rules and procedures applicable to a charge of direct criminal contempt are described n Rule 3.830, Florida Rules of Criminal Procedure. Rule 3.830 provides that:

[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.

Indirect contempt, by contrast, occurs “not in the presence of a court or of a judge acting judicially, but at a distance under circumstances that reasonably tend to degrade the court or the judge as a judicial officer, or to obstruct, interrupt, prevent, or embarrass the administration of justice by the court or judge.” Forbes v. State, 933 So. 2d 706, 711 (Fla. 4th DCA 2006). Thus, where the offending conduct takes place outside the presence of the court, any contempt at issue would be indirect. Indirect criminal contempt furthermore requires a judgment of guilt that recites the facts constituting the contempt. Fla. R. Crim. P. 3.840(f); See also Hagerman v. Hagerman, 751 So. 2d 152 (Fla. 2d DCA 2000) (reversing order that failed to recite factual basis for contempt); See also Price v. Hannahs, 954 So. 2d 97, 100 (Fla. 2d DCA 2007).

Indirect criminal contempt charges are governed by Rule 3.840, Florida Rules of Criminal Procedure. The Rule provides that indirect contempt charges must be governed and prosecuted as follows:

1. Order to Show Cause. The judge, of his own motion or upon affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring him to appear before the court to show cause why he should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant.
2. Motions; Answer. The defendant, personally or by counsel, may move to dismiss the order to show cause, move for a statement of particulars or answer such order by way of explanation or defense. All motions and the answer shall be in writing unless specified otherwise by the judge. A defendant’s omission to file motions or answer shall not be deemed as an admission of guilt of the contempt charged.
3. Order of Arrest; Bail. The judge may issue an order of arrest of the defendant if the judge has reason to believe the defendant will not appear in response to the order to show cause. The defendant shall be admitted to bail in the manner provided by law in criminal cases.
4. Arraignment; Hearing. The defendant may be arraigned at the time of the hearing, or prior thereto upon his request. A hearing to determine the guilt or innocence of the defendant shall follow a plea of not guilty. The judge may conduct a hearing without assistance of counsel or may be assisted by the prosecuting attorney or by an attorney appointed for that purpose. The defendant is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and may testify in his own defense. All issues of law and fact shall be heard and determined by the judge.
5. Disqualification of Judge. If the contempt charged involves disrespect to or criticism of a judge he shall disqualify himself from presiding at the hearing. Another judge shall be designated by the Chief Justice of the Supreme Court.
6. Verdict; Judgment. At the conclusion of the hearing the judge shall sign and enter of record a judgment of guilty or not guilty. There should be included in a judgment of guilty a recital of the facts constituting the contempt of which the defendant has been found and adjudicated guilty.
7. The Sentence; Indirect Contempt. Prior to the pronouncement of sentence, the judge shall inform the defendant of the accusation and judgment against him and inquire as to whether he has any cause to show why sentence should not be pronounced. The defendant shall be afforded the opportunity to present evidence of mitigating circumstances. The sentence shall be pronounced in open court and in the presence of the defendant.

In a criminal contempt proceeding the contemnor is presumed to be innocent until proved guilty beyond a reasonable doubt and he cannot be compelled to testify against himself. Demetree v. State, 89 So. 2d 498, 502 (Fla. 1956).