DAVID LAWTON PETTY
v.
STATE OF FLORIDA
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David Lawton Petty appeals a trial court order finding him in indirect criminal contempt and imposing a ten-day jail sentence. The appellate court affirms the contempt finding but reverses the sentence, requiring resentencing in compliance with procedural requirements of Florida Rule of Criminal Procedure 3.840(g).
The trial court's finding of contempt is affirmed, but the sentence is reversed and the case is remanded for resentencing. The trial court failed to comply with the mandatory procedural requirements of rule 3.840(g), which constitutes fundamental error.
[1] Failure to comply with Rule 3.840(g) procedural requirements when pronouncing sentence for indirect criminal contempt constitutes fundamental error requiring reversal and…
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Join FLexlaw to unlock all legal intelligence“Rule 3.840(g) requires that prior to the pronouncement of sentence for indirect criminal contempt, the court 'inform the defendant of the accusation and judgment,' 'inquire as to whether the defendant has any cause to show why sentence should not be pronounced,' and afford the defendant 'the opportunity to present evidence of mitigating circumstances.' In addition, the sentence must be pronounced 'in open court and in the presence of the defendant.'”
Statement of the procedural requirements of Rule 3.840(g) that the trial court failed to follow.
Petty was found in willful contempt of court by the trial court and sentenced to ten days in jail. The trial court did not follow the procedural requi…
The full statement of facts, procedural history, and disposition for this case are member content.
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March 4, 2019 BILBREY, J.
Appellant, David Lawton Petty, challenges the trial court order finding him in indirect criminal contempt and imposing a ten-day jail sentence. We affirm the order finding him in contempt but reverse for resentencing in accordance with rule 3.840(g), Florida Rules of Criminal Procedure.
Rule 3.840(g) requires that prior to the pronouncement of sentence for indirect criminal contempt, the court “inform the defendant of the accusation and judgment,” “inquire as to whether the defendant has any cause to show why sentence should not be pronounced,” and afford the defendant “the opportunity to present evidence of mitigating circumstances.” In addition, the sentence must be pronounced “in open court and in the presence of the defendant.” Fla. R. Crim. P. 3.840(g). The trial court did not comply with these requirements, and the failure to comply with rule 3.840(g) is fundamental error. Gooden v. State, 931 So. 2d 146 (Fla. 1st DCA 2006); see also Ensign v. State, 67 So. 3d 353 (Fla. 2d DCA 2011).
The order finding Appellant in willful contempt of court is affirmed, but the sentence imposed is reversed pursuant to Gooden. This cause is remanded for resentencing compliant with rule 3.840(g).
AFFIRMED in part, REVERSED in part, and REMANDED.
ROWE and KELSEY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. Such a motion must be filed on or before March 7, 2019. In absence of such motion by that date, the Clerk shall issue the mandate thereafter forthwith. Any response to such motion may be filed on or before March 13, 2019.
_____________________________ Andy Thomas, Public Defender, and Jasmine Russell, Assistant Public Defender, Tallahassee, for Appellant. Ashley B. Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
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- Amerisure Ins. Company-Fl v. Martin Mem'l Med. & Dep't of Fin. Servs., 67 So. 3d 353 (Fla. 1st DCA 2011)
- Ensign v. State, 67 So. 3d 353 (Fla. 2d DCA 2011)
- Magwood v. State, 931 So. 2d 146 (Fla. 1st DCA 2006)
- Green v. State, 931 So. 2d 146 (Fla. 1st DCA 2006)