FRANCO MICCICHE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Franco Micciche, a witness in a criminal case, appealed a contempt order requiring him to pay court reporter fees and submit to a deposition or face jail. The court reversed, finding procedural infirmities in the contempt proceedings and noting that Micciche was willing to submit to the deposition, making jail commitment unnecessary.
The contempt order was reversed because (1) the witness was not properly informed whether he was charged with direct or indirect criminal or civil contempt; (2) the order failed to state the type of contempt or recite facts constituting indirect criminal contempt; and (3) jailing the witness was improper because he was ready and willing to submit to the deposition, making jail commitment unnecessary to extract compliance.
[1] A contempt order must clearly state whether the contempt is direct or indirect, civil or criminal.
[2] An order finding a witness in contempt must recite the facts constituting the contempt, especially if it is an indirect criminal contempt.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Plainly, the witness was not properly informed in the rule to show cause, as required, whether he was being charged with direct or indirect civil or criminal contempt; moreover, the order under review fails to state, as required, (a) whether the witness was being held in direct or indirect criminal or civil contempt, and (b) a recital of the facts constituting the contempt, if it be an indirect criminal contempt.”
Establishes the primary procedural infirmities that rendered the contempt order defective.
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Join FLexlaw to unlock all legal intelligenceMicciche was a witness in a criminal case who received a subpoena duces tecum. The trial court entered an order to show cause why he should not be hel…
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PER CURIAM.
"This is an appeal by a witness in a criminal case [Franco Micciche] from a trial court order finding him in contempt, ordering him to pay a court reporter’s fee, and committing him to county jail until he purges himself of contempt by submitting to a deposition. The order appealed from was entered after a hearing on a prior order entered by the court in which the witness was required to show cause why he should not be held in contempt for failure to abide by a certain subpoena duces tecum issued in the criminal case.
The state has filed an answer brief in this cause confessing error because of certain procedural infirmities; we agree with the state’s confession of error. Plainly, the witness was not properly informed in the rule to show cause, as required, whether he was being charged with direct or indirect civil or criminal contempt; moreover, the order under review fails to state, as required, (a) whether the witness was being held in direct or indirect criminal or civil contempt, and (b) a recital of the facts constituting the contempt, if it be an indirect criminal contempt. Fla.R.Crim.P. 3.840(f); Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985); Pugliese v. Pugliese, 347 So. 2d 422 (Fla.1977); Mason v. Reiter, 531 So. 2d 348 (Fla. 3d DCA 1988), rev. denied, 542 So. 2d 989 (Fla.1989); Grant v. State, 464 So. 2d 650 (Fla. 4th DCA 1985).
Beyond that, if it was the trial court’s intent to find the witness in civil contempt as it orally stated on the record, it was clearly error to commit the witness to the county jail until he purged himself of contempt by submitting himself to a deposition. This is so because the transcript of the hearing on the rule to show cause clearly shows, without dispute, that the witness was ready at that time to submit to deposition; a commitment to jail was therefore unnecessary to extract such consent and was invalid. See Home Sav. & Loan Ass’n v. Turtle Reef Assoc., 409 So. 2d 1191, 1192 (Fla. 4th DCA 1982).
The final order under review is reversed, and because on this record (a) the appellant has, in fact, given the deposition required so that no civil contempt proceedings are now proper, and (b) the appellant did not willfully refuse to attend the originally scheduled deposition so that no criminal contempt proceedings would lie, the cause is remanded to the trial court with directions to discharge the appellant from the cause.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Yilka de Castro v. Scorpio de Castro, 957 So. 2d 1258 (Fla. 3d DCA 2007)…ing findings of contempt where defendant was not provided with the specifics regarding the alleged contempt and there was no information in the rule to show cause informing the defendant that he was subject to criminal penalties); Micciche v. State, 626 So. 2d 1028 (Fla. 3d DCA 1993)(holding that a witness found in contempt in a criminal case must be informed in the show cause order whether he is being charged with direct or indirect civil or criminal contempt and, if he was being charged with indirect crimina…
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Young v. Wood-Cohan, 727 So. 2d 322 (Fla. 4th DCA 1999)…or explanation. See Deter v. Deter, 353 So. 2d 614, 617 (Fla. 4th DCA 1977). That notice must include a statement regarding whether the hearing during which the defendant is to show cause is one for civil or criminal contempt. See Micciche v. State, 626 So. 2d 1028, 1028 (Fla. 3d DCA 1993); cf. Grant v. State, 464 So. 2d 650, 651-52 (Fla. 4th DCA 1985). In this case, based upon the motion and the rule to show cause, there was nothing to alert appellant that he would be subject to criminal contempt. Even the co…
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)
- Rocco Pugliese v. Pugliese, 347 So. 2d 422 (Fla. 1977)
- Grant v. State, 464 So. 2d 650 (Fla. 4th DCA 1985)
- Mason v. Reiter, 531 So. 2d 348 (Fla. 3d DCA 1988)
- Home Sav. & Loan Ass'n OF Fla. v. Turtle Reef Assocs., Inc., 409 So. 2d 1191 (Fla. 4th DCA 1982)