       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            JORGE RAMOS,
                              Appellant,

                                    v.

             NORTH STAR ENTERTAINMENT FIRM, LLC, and
                  1101 S. FEDERAL HIGHWAY, LLC,
                             Appellees.

                              No. 4D19-675

                             [April 29, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. CACE 18-
27239 (14).

   Michael B. Manes of Michael B. Manes, P.A., Plantation, for appellant.

  John P. Seiler and Richard J. Zaden of Seiler Sautter Zaden Rimes &
Wahlbrink Fort Lauderdale, for appellee North Star Entertainment Firm
LLC.

WARNER, J.

   Appellant Jorge Ramos appeals the trial court’s order of direct criminal
contempt and a sentence of sixty days in jail, based upon the court’s
finding that Ramos, a witness in a proceeding, had committed perjury.
Because the court weighed conflicting evidence, as well as relied on out-
of-court evidence, and the appellant never admitted the falsity of the
statements, the court erred in finding Ramos in direct criminal contempt.
We reverse.

   This case arises out of a landlord tenant dispute between North Star
Entertainment Firm, LLC and 1101 S. Federal Highway, LLC (Landlord).
North Star claims to be the rightful tenant to Landlord’s property pursuant
to a commercial property lease agreement. Ramos was a witness at a
temporary injunction hearing regarding their dispute. He was a former
owner/manager of North Star and current owner of the entity Crew Today,
LLC. In 2016, an original lease was entered into between Crew Today,
LLC, and Landlord. Pursuant to the lease, Landlord allowed Crew Today,
LLC to use its liquor license. Ramos then created North Star to operate a
disco on the leased property. After North Star was created, Ramos and
Landlord proceeded to transfer the liquor license to North Star in a
questionable manner.

    In 2017, Ramos ran into financial trouble. As a result, Ramos involved
Mr. Raphael Baruch (Baruch) in North Star with a split in the profits and
the business. This split is the subject of a verbal dispute between Ramos
and Baruch. According to North Star’s K-1 tax forms from 2017, and the
agreements between Baruch and Ramos, Baruch ultimately acquired
approximately sixty percent of North Star from Ramos. Later, Baruch and
Ramos had a falling out and Baruch terminated Ramos as manager of
North Star. Thereafter, Ramos became the manager for Landlord. Ramos
terminated the lease between Crew Today, LLC and Landlord. Landlord
then brought a separate eviction action against Crew Today, LLC. North
Star sued Landlord for breach of contract, fraud, misrepresentation,
unjust enrichment, and quantum merit. North Star sought emergency
relief from the trial court regarding the eviction through a verified motion
for a temporary injunction and to inspect and preserve property.

    At the temporary injunction hearing, Ramos at one point testified
regarding questionable documents he submitted to the Florida
Department of Business and Professional Regulation (DBPR) to obtain a
liquor license. The court raised its concern that Ramos’ testimony was
perjured. Ramos’ attorney, who was present, apprised the court that in
light of its concern he would direct Ramos to “take the Fifth.” The trial
court responded that the documents were signed by Ramos under oath
and submitted to the DBPR. The court asked Ramos’ attorney why Ramos
should not be held in direct criminal contempt because of documents
Ramos submitted to the DBPR. A discussion ensued and the court decided
to defer ruling on the contempt until he reviewed the transcript. The
hearing continued.

    At the conclusion of Ramos’ testimony, the court advised Ramos that
he was holding him in direct criminal contempt and addressed the reasons
for the ruling. The court asked if Ramos had grounds why he should not
be held in contempt. Ramos’ attorney argued against the reasons given
by the trial judge. The court stated that it would hold Ramos in direct
criminal contempt. Ramos’ attorney argued that other evidence would
show that Ramos was not lying. The court stated that it would defer ruling
on sentencing to allow for mitigation evidence to be presented.

   On the next day, the trial court issued the order adjudicating Ramos
guilty of direct criminal contempt. Then the following day, the trial court

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held a hearing allowing Ramos to present excusing or mitigating
circumstances for his sentence per the order. The court then sentenced
him to sixty days in jail. Ramos appeals the court’s judgment and
sentence.

   Preliminarily, we note that the trial court erred in its procedure for
holding Ramos in direct criminal contempt. Florida Rule of Criminal
Procedure 3.830, governing direct criminal contempt proceedings, requires
that:

      Prior to the adjudication of guilt the judge shall inform the
      defendant of the accusation against the defendant and inquire
      as to whether the defendant has any cause to show why he or
      she 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 provisions of rule 3.830 define the essence of due process in criminal
contempt proceedings and must be scrupulously followed.” Hutcheson v.
State, 903 So. 2d 1060, 1062 (Fla. 5th DCA 2005) (citations omitted). In
Hutcheson, the defendant was confronted with his allegedly perjurious
statement but was cut off by the trial court before he could give an
explanation. The court held that the trial court did not meet the
procedural due process requirements of the rule. “Where a claim of false
or perjured testimony is involved, the accused must, prior to the
adjudication of guilt, be given an opportunity to present evidence of
excusing or mitigating circumstances.” Id. (citations omitted) (emphasis
added). See also Peters v. State, 626 So. 2d 1048 (Fla 4th DCA 1993).

   Because the trial court did not provide an opportunity for Ramos to
present the evidence of explanation prior to finding him in contempt, the
court failed to strictly follow the procedures of the rule and that failure
would independently necessitate a reversal. However, as the findings of
the trial court did not support direct criminal contempt, we review the
merits of the judgment.

    The standard of review of a direct criminal contempt conviction is abuse
of discretion. Michaels v. Loftus, 139 So. 3d 324, 327 (Fla. 3d DCA 2014).
“While a judgment of direct contempt is entitled to a presumption of
correctness, it must be supported by the record.” Smith v. State, 954 So.
2d 1191, 1194 (Fla. 3d DCA 2007) (citations omitted). “The contempt
power should always be exercised with judicial restraint.” Emanuel v.
State, 601 So. 2d 1273, 1274 (Fla. 4th DCA 1992).

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   “In order to be considered direct criminal contempt, all of the acts
underlying the contemptuous conduct must be committed in open court
in the presence of the judge, ‘where all of the essential elements of the
misconduct are under the eye of the court [and] are actually observed by
the court.’” Plank v. State, 190 So. 3d 594, 606 (Fla. 2016) (citing In re
Oliver, 333 U.S. 257, 275 (1948)). If the judge relies on statements and
testimony from others regarding their knowledge about the contemptuous
acts, then the misconduct is no longer considered direct criminal
contempt. Id. “‘[T]he judge must have personal knowledge of [the
misconduct] acquired by his own observation of the contemptuous
conduct.’” Id. (citing In re Oliver, 333 U.S. at 275).

    In State ex rel. Luban v. Coleman, 189 So. 713, 714 (1939), the supreme
court held that in order for perjury to constitute contempt of court, “it
must appear that (1) the alleged false answers had an obstructive effect,
(2) there existed judicial knowledge of the falsity of the testimony, and (3)
the question was pertinent to the issue.” The supreme court further
explained that:

      In most of the cases in which perjury or false swearing has
      been held to constitute a contempt, the falseness of the
      statements or allegations made under oath was either
      admitted or so clearly shown, generally from the contemner's
      own statements, as to be apparently beyond question. Where,
      however, the falsity of the testimony is denied and is a
      matter merely of inference of opinion, the court should
      not weigh the conflicting evidence in a contempt
      proceeding, but should leave the alleged contemner to be
      punished criminally if guilty of perjury. In other words, the
      contemner is entitled to a jury trial if the facts are
      substantially disputed, and the court cannot take judicial
      knowledge that the testimony or allegation is false.

Id. at 715. (Emphasis added.)

   In Emanuel v. State, 601 So. 2d 1273, 1275 (Fla. 4th DCA 1992), we
addressed direct criminal contempt based upon perjury and concluded
that unless it was admitted, it could not be punished through contempt.
The defendant, at a suppression hearing, testified contrary to the
testimony of two state witnesses and claimed that he did not consent to a
search while the other witnesses said that he did. Upon review of the trial
court’s order finding the defendant in direct criminal contempt for
committing perjury, this court determined that the trial court erred. Id.

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The strict standard of proof necessary to establish judicial knowledge of
the falsity of the testimony is “satisfied only where the witness admits the
falsity or other circumstances demonstrate beyond question the false
nature of testimony.” Id. at 1275. (Emphasis added.) Because of due
process concerns, this court stated that “in the ordinary situation where
perjury is suspected, a state prosecution for perjury is the preferred
alternative.” Id. at 1275. We recognized that it is the trial judge’s
responsibility to judge credibility and decide factual disputes. But “[t]his
responsibility should rarely be mixed with the authority to find a party in
contempt for false testimony . . . . Under Coleman, contempt should be
reserved only for the most blatant cases in which the perjury is virtually
undisputed.” Id. at 1275 (referring to Coleman, 189 So. at 714).

    The trial court found four allegedly false statements to support the
finding of contempt. None of them constitute a direct admission of the
falsity of testimony. The first instance of perjury found by the trial court
was Ramos’ testimony, twice, that he had not seen a 2017 tax return and
the attached K-1 tax form, which showed that he owned less than 100%
of the partnership between Baruch and him in creating North Star. And,
then, “after being confronted with the cover letter to him, the K-1 and the
fact his accountant niece prepared the return,” Ramos changed his
testimony and said that he had seen the return. According to his
accountant, who was also his niece, she sent out a K-1 showing the 100%
interest and then sent out a revised K-1 showing that he had only a 42%
interest. Ramos testified that he did not look at the second K-1 when it
was sent, and had only seen the K-1 which showed 100% interest.
Applying Coleman and Emanuel, it is clear that Ramos did not admit the
falsity of any statement. He explained that he had failed to read various
tax documents. His niece, his accountant, testified she emailed him the
documents. The court clearly did not believe his testimony that he did not
read the documents and weighed his testimony against that of the niece,
contrary to the dictates of Emanuel. This is not one of those cases where
the false statement is “virtually undisputed.” Here its falsity was very
much disputed.

   The second reason the court found Ramos in contempt, as stated in the
order, was:

      The relevance of the return was that Ramos had testified in
      the hearing under oath that [Baruch] owned forty percent of
      Plaintiff LLC yet the return showed him to own 57.3699%.
      The December 24, 2017, Supplemental Purchase Agreement
      and the November 15, 2017, Membership Interest Purchase
      Agreement [Defendant's Composite Exhibit 4] also showed

                                     5
      50%, plus 10% for a total of 60% ownership. Both documents
      signed and ultimately acknowledged by the witness showed
      his earlier testimony to be a lie.

The trial court determined that Ramos lied based on the K-1 and the
Supplemental Purchase Agreement, and the Membership Interest
Purchase Agreement. In order to arrive at the conclusion that Ramos
committed perjury, the trial court had to weigh Ramos’ testimony
regarding the K-1. Also, the court had to consider the agreements between
Ramos and Baruch regarding the ownership of North Star. These
agreements were created outside the presence of the court and the subject
of dispute between the parties.

   In Fiore v. Athineos, 9 So. 3d 1291 (Fla. 4th DCA 2009), we considered
a trial court’s finding that a mother was in direct criminal contempt in a
paternity and dependency action. The mother had failed to execute and
return the children’s completed passport applications to the father. We
concluded that the conduct concerning the contempt occurred outside the
“actual presence of the court” as required by Florida Rule of Criminal
Procedure 3.830; thus, it was not direct criminal contempt. Id. at 1292.
Using the United States Supreme Court as our guide, we stated that
typically direct criminal contempt:

      includes only charges of misconduct, in open court, in the
      presence of the judge, which disturbs the court’s business,
      where all of the essential elements of the misconduct are under
      the eye of the court, are actually observed by the court, and
      where immediate punishment is essential to prevent
      “demoralization of the court’s authority before the public.”

Id. at 1293 (citing In re Oliver, 333 U.S. 257, 275 (1948)). (Emphasis
added.) Accordingly, we reversed the order finding the mother in direct
criminal contempt. Id. at 1293.

    Here, to conclude that Ramos committed perjury, the court considered
the testimony of the niece regarding the preparation of the documents,
when and to whom they were sent, and the analysis of the agreements
between the parties. As the documents on which the trial court relied in
its conclusion were created out of the court’s presence, and Ramos did not
admit that his testimony based on those documents was false, the court
erred in finding him in direct criminal contempt on these grounds.

   The trial court found that Ramos’ submission of fraudulent documents
to the DBPR for a liquor license was a third incident of perjury which

                                    6
warranted a finding of direct criminal contempt. The court found that
Ramos admitted signing the documents, but as Ramos’ counsel aptly
noted, if Ramos had lied on the form it was an act committed months
before the trial and would not be direct criminal contempt.

   In Pugliese v. Pugliese, 347 So. 2d 422, 426 (Fla. 1977), the court
addressed the issue of criminal contempt for failure to comply with an
order. The petitioner in that case had admitted in the presence of the trial
court that he had defied the terms of the judgment. The respondent
argued on appeal that the trial judge then “heard the conduct” constituting
the contempt in the actual presence of the court. Id. at 426. The supreme
court resolved:

      Were this contention accepted, the distinction between direct
      and indirect criminal contempt would be obliterated because
      the judge must always hear some testimony in his presence
      at a hearing on indirect contempt concerning conduct which
      took place outside his presence. We reject any such notion
      that would expunge the distinction between direct and
      indirect contempt.

Id. at 426. The court concluded that the conduct in question—the
violation of the trial court’s order—took place outside the presence of the
judge, and thus did not constitute a direct criminal contempt. Similarly,
in this case, the false statement to the DBPR took place outside the
presence of the court and cannot be the basis of a direct criminal
contempt. 1

   The fourth instance of contemptuous conduct which the trial court
found was that Ramos “swore to [DBPR] to obtain the [liquor] license for
North Star, knew that the license belonged to North Star, knew that
DBPR’s records showed the license belonged to North Star yet testified to
the Court under oath that the license was owned by [Landlord].” To the
extent the trial court relied on Ramos’ statements in the application to
DBPR, it based its finding of direct criminal contempt on matters occurring
outside the court’s presence. To the extent the court relied on Ramos’
contrary statement of ownership at trial, Ramos argues that his belief that
the liquor license was owned by Landlord was not perjury but a belief the
liquor license was tied to the address owned by Landlord. Ramos also
argues that the issue of “ownership” of the license involved a legal opinion

1 We also note that the court admitted that the issue of the liquor license was
not relevant to the proceedings at issue. Thus, it did not meet the test of Coleman
that the false statement be pertinent to the issue before the court.

                                        7
which Ramos was unable to make, and as a result the trial judge was not
able to satisfy the requirement of “judicial knowledge.” In Coleman, the
supreme court noted that where the falsity of the statement depends on a
matter of opinion, courts should leave the contemnor to be punished for
perjury and not direct contempt. 189 So. at 715. Based on Coleman, this
statement of ownership of the liquor license should not have been
punished by direct contempt.

   In    all   of   the   instances    that    the   trial  court    found
contemptuous conduct, it abused its discretion in finding Ramos in direct
criminal contempt. As this court stated in Emanuel, “in the ordinary
situation where perjury is suspected, a state prosecution for perjury is the
preferred alternative.” 601 So. 2d at 1275.

   Reversed and remanded to vacate the judgment and sentence for direct
criminal contempt.

KLINGENSMITH and KUNTZ, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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