          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                       NICHOLAS P. SANDELIER,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D16-3695

                            [February 28, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence Michael Mirman, Judge; L.T. Case No.
432016CF000487A.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

   The defendant appeals an order on direct criminal contempt. He argues
the trial court erred in: (1) improperly classifying his failure to appear as
direct contempt; (2) failing to comply with the procedural requirements for
indirect contempt proceedings; and (3) failing to make sufficient findings
in the judgment. We agree with him on his first two arguments and
reverse.

   When the defendant failed to appear at a court hearing, the trial court
issued a bench warrant and estreated his bond. The defendant moved to
recall the bench warrant and set aside the bond estreature. At the hearing
on his motion, the following occurred:

      THE COURT: All right, [defendant], it is my practice to
      concurrently hold a contempt hearing because of failure to
      appear is considered direct contempt if it’s willful; at the same
      time we hear the issue about recalling the bench warrant
      since the issue is overlapping meaning if I hold you in
      contempt, I can sentence you independently to six months in
      the county jail at the same time I hold you without bond in
      that regard, so, just so you’re aware of that, so, I will notice
      you that that’s what we’re doing at this time. Did you want to
      talk to your lawyer about that or do you understand that?

      (TRANSCRIBER NOTE: Pause)

      [DEFENSE COUNSEL]: We’re ready, Your Honor.

      THE COURT: You’re ready to go forward? All right, so, at this
      time I will be conducting a contempt hearing at the same time
      we issue the - we address the issue of recalling the bench
      warrant and setting aside the estreature. If you raise your
      right hand, [defendant], the clerk will swear you.

   The court then asked the defendant why he should not be held in
contempt for failing to appear. The defendant explained there had been a
misunderstanding. He showed up to court at 1:30 p.m. on September 28,
2016, only to discover the hearing was set the day before.

    The defendant testified that he called the court clerk and his bondsman
to confirm the court date on the morning of September 27. His bondsman
told him the court date was September 28, and the clerk told him the
hearing was at 1:30 p.m. The defendant also told the court he had a
problem with a truck in the middle of the state that needed to be moved.

   The court asked the defendant why the truck was relevant to his failure
to appear. The defendant replied he did not know, but later said it was
why he should not be held in contempt. The State advised the court that
the defendant had nine prior felony convictions (seven from his juvenile
record) and five prior failures to appear.

   The defendant again explained he was provided the wrong date from
his bondsman. He also advised his mother was in court and could
corroborate his testimony. The court replied “I can’t hear what he said
from you; if you need to call [the bondsman] as a witness, he needs to be
here now, period, and he is not, so, if you want to call the mother, call the
mother.” The defendant’s mother then gave corroborating testimony.

   After the parties concluded their arguments, the following occurred:

      THE COURT: [Defendant] I don’t believe you, period, end of
      story, so, I find you in contempt. On the issue of contempt as

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      far as your punishment is concerned, you have the
      opportunity to present mitigating evidence, you did by your
      testimony, your calling witnesses as far as what your sentence
      should be.    Do you wish to present any evidence on
      mitigation?

      (TRANSCRIBER NOTE: Pause)

      [DEFENSE COUNSEL]: No, Your Honor, we’re just asking for
      leniency in that matter.

      ....

      THE COURT: Having found you in contempt, [defendant], I
      will adjudicate you guilty of contempt and sentence you to 159
      days in the county jail as punishment for the contempt. Your
      request to vacate the bench warrant and set aside the
      estreature is denied. You have 30 days to appeal the issue of
      the finding of the contempt in this matter, you have the right
      to an attorney and appeal in that regard. Thank you.

The court entered a judgment and sentence on direct criminal contempt,
from which the defendant now appeals.

  We review contempt orders for an abuse of discretion. Napoli v. Napoli,
142 So. 3d 953, 954–55 (Fla. 4th DCA 2014).

   Our supreme court has held that a party who is ordered by the trial
court to appear at a scheduled hearing, but fails to do so, must be found
in indirect criminal contempt, rather than in direct criminal contempt.
State v. Diaz de la Portilla, 177 So. 3d 965, 972 (Fla. 2015). The State
agrees and so do we. The trial court erred in finding the defendant guilty
of direct criminal contempt.

   The defendant next argues the trial court failed to comply with
numerous provisions of Florida Rule of Criminal Procedure 3.840. The
State suggests the defendant waived this argument. See Rader v. State,
571 So. 2d 556 (Fla. 4th DCA 1990). Here, the defendant did not
specifically use the word “waive.” But, after being put on notice of the trial
court’s intention to conduct a contempt hearing, the defendant appears to
have agreed to proceed with the hearing. Nevertheless, we do not find a
knowing, intelligent waiver to have occurred here.



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   “Only an express waiver will suffice to estop the aggrieved party from
challenging the adjudication on appeal.” Reins v. Johnson, 604 So. 2d
911, 911 (Fla. 2d DCA 1992) (citing Persoff, 589 So. 2d at 1007). We
disagree that the defendant waived the arguments now made. He clearly
asked about having the bondsman testify on his behalf, but had no time
in which to do so.

   Given the proverbial “rock and the hard place” in which the defendant
was situated, it is not surprising he felt pressured into going forward with
this impromptu hearing. See, e.g., Gratz v. State, 84 So. 3d 1219, 1221
n.3 (Fla. 3d DCA 2012) (“Given the limited choices of trial dates afforded
the defense, and defense counsel’s immediate clarification of his readiness
and articulated reasons why a continuance was necessary, we reject the
State’s waiver argument.”).

   Indirect criminal contempt proceedings require strict adherence to rule
3.840. Levey v. D’Angelo, 819 So. 2d 864, 869 (Fla. 4th DCA 2002).
Failure to comply with the procedural requirements of rule 3.840
constitutes fundamental error. Baker v. Green, 732 So. 2d 6, 7 (Fla. 4th
DCA 1999). A party’s failure to raise the issue of noncompliance with rule
3.840 will not bar full consideration of the issue on appeal. Persoff v.
Persoff, 589 So. 2d 1007, 1008-09 (Fla. 4th DCA 1991).

   Indirect criminal contempt is a proceeding in which the individual is
protected by the full panoply of due process rights. Martin v. State, 743
So. 2d 591, 592 (Fla. 4th DCA 1999). This court has reversed an indirect
criminal contempt charge where the defendant was not provided formal
written notice of the charge. Martinez v. State, 976 So. 2d 1222, 1223 (Fla.
4th DCA 2008).

   Other districts have reached similar conclusions. See Maloy v. Judd,
209 So. 3d 581 (Fla. 2d DCA 2015) (holding the trial court failed to comply
with rule 3.840 by failing to issue a written order to show cause); J-II
Investments, Inc. v. Leon County, 21 So. 3d 86, 89 (Fla. 1st DCA 2009)
(holding rule 3.840 requires the trial court to issue an order to show
cause); De Castro v. De Castro, 957 So. 2d 1258, 1260 (Fla. 3d DCA 2007)
(reversing for failure to issue show cause order).

   Our supreme court has interpreted Rule 3.840 to

      require[] that the court issue an order to show cause with
      reasonable time allowed for preparation of the defense and
      further provides that the defendant is “entitled to be
      represented by counsel, have compulsory process for the

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      attendance of witnesses, and testify in his or her own
      defense.” These necessary procedures for indirect criminal
      contempt proceedings were not followed in this case.

Plank v. State, 190 So. 3d 594, 607 (Fla. 2016) (emphasis added) (internal
citations omitted). The court erred in expediting the process without
providing the defendant with a rule to show cause.

   Rule 3.840 also requires a reasonable time to prepare a defense “after
service of the order on the defendant.” Fla. R. Crim. P. 3.840. We have
held that a two-day notice is insufficient time to prepare and defend
against an indirect criminal contempt charge. Korn v. Korn, 180 So. 3d
1122, 1124 (Fla. 4th DCA 2015); see also Russ v. State, 622 So. 2d 501,
502 (Fla. 5th DCA 1993) (holding two days insufficient); Goral v. State, 553
So. 2d 1282, 1283 (Fla. 3d DCA 1989) (holding two “actual working days
notice” insufficient).

   Here, the defendant received notice of the contempt hearing only
moments before the final hearing took place. At the hearing, the defendant
argued that his bail bondsman provided him the wrong date. The trial
court suggested the defendant needed to have the witness present “now.”
The defendant was not provided with a reasonable time to prepare his
defense.

   In short, the trial court erred in failing to provide the defendant with
notice, a reasonable time to prepare his defense, and compulsory process
for the attendance of witnesses. See Fla. R. Crim. P. 3.840; Baker, 732
So. 2d at 7. We therefore reverse and remand the case. 1

    Reversed and remanded.

WARNER and DAMOORGIAN, JJ., concur.

                              *         *         *

    Not final until disposition of timely filed motion for rehearing.




1 We find no merit in the defendant’s last argument that the trial court failed to
provide sufficient findings. Written findings of fact, setting forth the basis for
indirect criminal contempt, are not required where oral findings are made on the
record. Gidden v. State, 613 So. 2d 457, 458 (Fla. 1993).

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