NESTOR TENORIO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Nestor Tenorio appeals his conviction for four counts of direct criminal contempt, challenging whether he was entitled to a jury trial given his aggregate sentence exceeded six months. The Florida Second District Court of Appeal affirmed the convictions and sentences, holding that the four acts of contumacy were temporally distinct and thus could be punished separately without a jury trial, but remanded for correction of technical errors in the sentencing orders.
The court held that four temporally distinct episodes of contumacious conduct occurred, not a single act, and therefore Tenorio was not entitled to a jury trial under the six-month rule established in Aaron v. State. The convictions and sentences were affirmed, though the court remanded for correction of technical errors in the written sentencing orders.
[1] A defendant is not entitled to a jury trial for direct criminal contempt when the contemptuous acts are temporally distinct and not part of a single continuous episode.
[2] When multiple distinct acts of direct criminal contempt occur, each act may be punished separately, and the aggregation of sentences does not automatically trigger a righ…
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Join FLexlaw to unlock all legal intelligence“the trial court correctly concluded that four temporally distinct episodes of contumacious conduct occurred, i.e. the expression of an obscenity directed to the court at or near the courtroom's doorway, the repetition of the obscenity when the appellant was brought into the courtroom, and two separate acts of kicking "buckets of files" from the clerk's desk.”
Establishes that the court found four separate acts of contempt rather than a single act, supporting the denial of jury trial rights.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTenorio committed four separate acts of criminal contempt in the courtroom: he expressed an obscenity directed at the court near the courtroom doorway…
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FRANK, Judge.
The appellant challenges an order, entered pursuant to Rule 3.830 of the Florida Rules of Criminal Procedure, adjudicating him guilty of four acts of direct criminal contempt for which he received a sentence of four consecutive six-month terms.1 The appellant pleaded guilty to three of the four acts of contumacy. The appellant contends he was entitled to a jury trial for the reason that the aggregated sentences exceeded six months. See Aaron v. State, 345 So. 2d 641 (Fla.1977). We disagree and affirm the determinations of guilt. The sentences are also affirmed with the exceptions dealt with below.
Contrary to the appellant’s claim that his behavior in the presence of the court constituted but a single act, thus rendering a sentence without a jury trial in excess of six months constitutionally impermissible, the trial court correctly concluded that four temporally distinct episodes of contumacious conduct occurred, i.e. the expression of an obscenity directed to the court at or near the courtroom’s doorway, the repetition of the obscenity when the appellant was brought into the courtroom, and two separate acts of kicking “buckets of files” from the clerk’s desk. Here, unlike the factual setting in Butler v. State, 330 So. 2d 244 (Fla. 2d DCA 1976), it cannot be said that the appellant’s actions may be treated as a single act. The record discloses they plainly were not. Moreover, the physical and verbal outbursts did not occur in the context of a verbal contest between the court and the contemnor which would in any degree warrant a belief that the court provoked the conduct forming the basis for the judgments of guilt and the separate sentences. Cf. Skelton v. Beall, 133 So. 2d 477 (Fla. 3d DCA 1961).
The appellant properly points out, however, that the trial court failed to set forth facts in the judgments upon which the adjudications of guilt are based. Osborne v. State, 430 So. 2d 551 (Fla. 2d DCA 1983), requires that the technical error be corrected.
Finally, one of the court’s sentencing orders erroneously imposes a sentence “for a term of Hillsborough.” It is obvious that a typographical error occurred. Upon remand, the written sentence as to paragraph 4 of the charging instrument should be corrected to conform to the trial court’s oral pronouncement of a term of six months to be served consecutively on each of the four paragraphs of that instrument.
Accordingly, we affirm the sentences and remand for the correction of the technical errors in accordance with this opinion.
OTT, A.C.J., and BOARDMAN, EDWARD F., (Ret.) J., concur. . Notwithstanding that the trial court initiated the contempt proceeding under Rule 3.830, it neither adjudicated nor punished the acts of contumacy summarily. Rather, the trial court accorded the appellant the procedural safeguards provided in Rule 3.840.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Schenck v. State, 645 So. 2d 71 (Fla. 4th DCA 1994)…facts constituting contempt); accord, Spivey v. State, 616 So. 2d 550 (Fla. 2d DCA 1993); Johnson v. State, 584 So. 2d 95 (Fla. 1st DCA 1991); Wells v. State, 487 So. 2d 1101 (Fla. 5th DCA), cause dism’d, 491 So. 2d 281 (Fla.1986); Tenorio v. State, 462 So. 2d 880 (Fla. 2d DCA 1985); Osborne v. State, 430 So. 2d 551 (Fla. 2d DCA 1983); Bay v. State, 352 So. 2d 110 (Fla. 1st DCA), cert. denied, 360 So. 2d 1250 (Fla.1977); but see Gidden v. State, 593 So. 2d 294 (Fla. 5th DCA), approved, 613 So. 2d 457 (Fla.199…
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B.M. v. State, 523 So. 2d 1185 (Fla. 2d DCA 1988)…mpt.” 330 So. 2d at 245. The transcript before us reveals that B.M. and the judge engaged in a continuous episode of sparring, during which B.M. conducted himself in a profane and disrespectful manner. By contrast, we emphasized in Tenorio v. State, 462 So. 2d 880, 881 (Fla. 2d DCA 1985), that “four temporally distinct episodes of contumacious conduct occurred” at various locations within the courtroom, thus giving rise to four separate contempt adjudications. Here, however, the judge should have held B.M. gu…
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Swain v. State, 226 So. 3d 250 (Fla. 4th DCA 2017)…2d 1185 (Fla. 2d DCA 1988). In B.M., the defendant and the judge “engaged in a continuous episode of sparring,” as compared with the defendant committing “temporally distinct episodes of contumacious conduct.” Id. at 1186 (quoting Tenorio v. State, 462 So. 2d 880, 881 (Fla. 2d DCA 1985)). The “continuous episode” involved the defendant reacting to the judge’s imposition of a first contempt charge by sticking out his tongue. Id. at 1185-86. Here, Appellant reacted to his first contempt charge by mocking and/o…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Aaron v. State, 345 So. 2d 641 (Fla. 1977)
- Dannie Lee Butler v. State, 330 So. 2d 244 (Fla. 2d DCA 1976)
- Vinson Skelton & Alterman Transp. Lines, Inc. v. Beall, 133 So. 2d 477 (Fla. 3d DCA 1961)
- Osborne v. State, 430 So. 2d 551 (Fla. 2d DCA 1983)