       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 25, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D19-0090
                     Lower Tribunal Nos. 16-2776; 18-1081
                             ________________


                               J.A., a Juvenile,
                                    Petitioner,

                                        vs.

                         Kevin Housel, etc., et al.,
                                  Respondents.



      A case of Original Jurisdiction-Habeas Corpus.

      Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant
Public Defender, for petitioner.

      Ashley Brooke Moody, Attorney General, and David Llanes, Assistant
Attorney General, for respondent The State of Florida.


Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge.

      MILLER, J.
      Petitioner, J.A., a juvenile, has applied for the issuance of a writ of habeas

corpus directed at the respondent, Kevin Housel, as Regional Director at Florida

Department of Juvenile Justice.     The petition alleges that J.A. is unlawfully

detained in the custody of the Department of Juvenile Justice pursuant to a trial

court order finding ten instances of indirect criminal contempt and imposing a

sentence of 100 days in secure detention. J.A. premises the application upon

allegations of procedural deficiencies in the proceedings below and a legal

prohibition on imposing consecutive sentences, as the instances of contempt

identified constitute a single, continuous act. For the reasons set forth below, we

deny the petition.

    FACTUAL BACKGROUND AND TRIAL COURT PROCEEDINGS

      On February 6, 2018, the circuit court placed J.A. on probation for petit theft

and possession of cannabis. Pursuant to the terms of the probation, J.A. was

required by written order to live at her mother’s residence and “accept reasonable

controls and discipline in that home.” While on probation, J.A. was charged with

committing a new offense, possession of a controlled substance. On October 9,

2018, at a status conference on the probation violation, following the issuance of

numerous pickup orders, the lower court entered an order entitled “Do Not Run

Order.” The order required J.A. to remain living at her mother’s home “unless

otherwise ordered” by the court. The order contained the following provisions:



                                         2
      The Child/Respondent is put on notice both verbally and by virtue of
      this Order that if a Petition for Rule to Show Cause is issued, a
      hearing may be held on whether the Child/Respondent shall be
      deemed guilty of contempt.

      The Child/Respondent is put on notice that pursuant to F.S. 985.037,
      Fla[.] Stat. (2017), the child is facing five (5) days for the first day
      that the Child/Respondent is on run, and no more than fifteen (15)
      days for each subsequent day. Each day on run is a separate offense
      of contempt.

(emphasis supplied).

      On the evening of December 26, 2018, J.A. left her home without

permission. J.A.’s mother was unable to ascertain her child’s whereabouts, and on

December 27, 2018, she filed a missing person’s report. On December 28, 2018,

the trial court entered a pickup order for J.A. J.A.’s location remained unknown

until January 4, 2019. On that day, members of the Homestead Police Department

discovered J.A. at the Everglades Motel located at 605 South Krome Avenue in

Miami-Dade County, Florida. J.A. was taken into custody pursuant to the terms of

the pickup order.

      On January 7, 2019, the State filed a sworn Petition for Rule to Show Cause,

seeking to commence indirect criminal contempt proceedings against J.A. The

petition reflected that J.A. had previously been held in indirect contempt for

violating the circuit court’s Do Not Run Order and sentenced to twenty days in

secure detention. It further set forth a recitation of the essential facts upon which

the State relied to support a finding of indirect criminal contempt. On the same


                                         3
date, the trial court issued an order to show cause as to why J.A. should not be held

in contempt of court for violating the terms of the Do Not Run Order. The sworn

petition, filed by the State, was attached to the show cause order, and the facts

alleged therein were incorporated into the order by reference. J.A. was further

ordered to appear before the trial court on January 10, 2019 for an indirect criminal

contempt hearing.

      On January 10, 2019, the trial court conducted a full evidentiary hearing on

the allegations set forth within the petition and incorporated into the show cause

order. At the conclusion of the hearing, the trial court found J.A. to be in contempt

of court for ten separate violations of the Do Not Run Order. The court reasoned

that each day J.A. failed and refused to remain at home constituted a separate

violation of court order, punishable as an individual act. As it was not her first

adjudication of contempt, J.A. was sentenced to ten days in secure detention for

each violation, all sentences to run consecutive, for a total of 100 days.

                                LEGAL ANALYSIS

      We review a finding of criminal contempt under an abuse of discretion

standard. Smith v. State, 954 So. 2d 1191, 1194 (Fla. 3d DCA 2007). “While a

judgment of contempt is entitled to a presumption of correctness, it must be

supported by the record.” Id., citing Berman v. State,                 751 So. 2d 612

(Fla. 4th DCA 1999) and Krueger v. State, 351 So. 2d 47 (Fla. 3d DCA 1977).


                                          4
       We review the legal issues presented de novo. Huber v. Disaster Sols.,

LLC, 180 So. 3d 1145, 1148 (Fla. 4th DCA 2015). Indirect criminal contempt

proceedings must adhere to the procedural due process requirements enumerated in

Florida Rule of Juvenile Procedure 8.150 and section 985.037, Florida Statutes

(2019). See A.P. v. State, 215 So. 3d 662, 662 (Fla. 5th DCA 2017); K.M. v. State,

962 So. 2d 969 (Fla. 4th DCA 2007).

      J.A. contends that the order to show cause was deficient pursuant to Florida

Rule of Juvenile Procedure 8.150. Rule 8.150(c) provides, in pertinent part:

      An indirect contempt may be prosecuted in the following manner:

      (2) Order to Show Cause. On affidavit of any person having personal
      knowledge of the facts, the court may issue and sign an order to show
      cause. The order must state the essential facts constituting the
      contempt charged and require the child to appear before the court to
      show cause why the child should not be held in contempt of court . . .
      The order must specify the time and place of the hearing, with a
      reasonable time allowed for the preparation of a defense after service
      of the order on the child. It must be served in the same manner as a
      summons. Nothing herein shall be construed to prevent the child from
      waiving the service of process.

      In the instant case, although the trial court entitled the order to show cause

“Rule to Show Cause,” the court complied with all of the delineated procedural

requirements. Prior to issuance, the lower court received an affidavit from the

State alleging the essential facts constituting contempt. The court then signed the

order to show cause, including all of the essential facts by incorporation and


                                         5
attachment. J.A. was properly served with the order. Counsel was appointed and a

hearing scheduled. A full evidentiary hearing was convened and recorded. J.A.

was permitted to testify in her own defense. As such, we conclude that due process

was properly afforded. See Fla. R. Juv. P. 8.150(c)(5);1 § 985.037, Fla. Stat.

(2019).2

      J.A. further contends that the act of failing to remain at home for ten

successive days constitutes, at most, a single act of contempt, thus, the imposition

of a ten separate consecutive sentences is illegal. The statute governing juvenile

contempt proceedings provides, in relevant part:

      (1) CONTEMPT OF COURT; LEGISLATIVE INTENT.-The court
      may punish any child for contempt for interfering with the court or
      with court administration, or for violating any provision of this

1Rule 8.150(c)(5) provides: “At the hearing, the child has the following rights: (A)
The right to be represented by legal counsel. (B) The right to testify in the child's
own defense.              (C) The right to confront witnesses. (D) The right to
subpoena and present witnesses. (E) The right to have the hearing recorded and a
copy of such recording. (F) The right to have a transcript of the proceeding. (G)
The right to appeal.”
2Section 985.037(4)(b) provides: “If a child is charged with indirect contempt of
court, the court must hold a hearing within 24 hours to determine whether the child
committed indirect contempt of a valid court order. At the hearing, the following
due process rights must be provided to the child: [1] Right to a copy of the order to
show cause alleging facts supporting the contempt charge.                 [2] Right to
an explanation of the nature and the consequences of the proceedings. [3] Right to
legal counsel and the right to have legal counsel appointed by the court . . . [4]
Right to confront witnesses. [5] Right to present witnesses. [6] Right to have a
transcript or record of the proceeding. [7] Right to appeal to an appropriate court.”


                                          6
      chapter or order of the court relative thereto. It is the intent of the
      Legislature that the court restrict and limit the use of contempt powers
      with respect to commitment of a child to a secure facility. A child who
      commits direct contempt of court or indirect contempt of a valid court
      order may be taken into custody and ordered to serve an alternative
      sanction or placed in a secure facility, as authorized in this section, by
      order of the court.

      (2) PLACEMENT IN A SECURE FACILITY.-A child may be placed
      in a secure facility for purposes of punishment for contempt of court if
      alternative sanctions are unavailable or inappropriate, or if the child
      has already been ordered to serve an alternative sanction but failed to
      comply with the sanction. A delinquent child who has been held in
      direct or indirect contempt may be placed in a secure detention facility
      not to exceed 5 days for a first offense and not to exceed 15 days for a
      second or subsequent offense.

§ 985.037, Fla. Stat. (2019).

      In J.M. v. Gargett, 101 So. 3d 352, 354 (Fla. 2012), the Florida Supreme

Court considered whether section 985.037, Florida Statutes “authorizes a trial court

to sentence a juvenile to consecutive periods in a secure detention facility where

the juvenile has committed multiple violations of a single probation order.” The

court examined a case in which a juvenile challenged the denial of his petition for

writ of habeas corpus following the imposition of consecutive sentences in secure

detention for indirect criminal contempt premised upon the failure of the juvenile

to adhere to his curfew for three successive days. After closely examining the

language set forth in the statute, the court concluded, “[U]nder section 985.037, a

juvenile who violates a court order on multiple occasions—and in doing so


                                          7
commits several acts of indirect contempt—may be sentenced to up to five days'

secure detention for the first offense, and up to fifteen days' secure detention for

each second or subsequent offense.” Id. at 356. The court further noted:

      To hold otherwise would prohibit a trial judge from punishing
      individuals, such as the appellant, who repeatedly and
        { "pageset": "S36
                   intentionally disparage the integrity of the court and
      interfere with the course and conduct of proceedings before it. A trial
      court would be powerless to impose more than twenty days of secure
      detention, no matter how many acts of contempt were committed or
      how egregious they were.

Id. at 356-57 (quoting K.Q.S. v. State, 975 So. 2d 536, 538 (Fla. 1st DCA 2008)).

      Similarly, in J.M.H. v. State, 112 So. 3d 692 (Fla. 2d DCA 2013), the

Second District Court of Appeal upheld a contempt order imposing consecutive

sentences for multiple violations of a single probation order. Citing the holding in

J.M., the court stated, “[t]he statutory scheme itself contemplates this exact

situation and calls for trial courts to limit contempt sentences to five days for the

first instance and fifteen days for each successive instance.” Id. at 693.

      In the instant case, J.A. previously violated the trial court’s command to

remain in her home, culminating in a contempt finding and placement in secure

detention. Following that violation, in an effort to ensure J.A. would follow its

edict, the trial court explicitly forewarned J.A. that any future violation would

result in a separate contempt charge for “each day [she remained on the] run.” As

the Do Not Run Order effectively required J.A. to remain home each day, we


                                          8
conclude that each day that J.A. refused to adhere to the court’s requirement

constituted a separate violation of court order. To hold otherwise would vitiate the

express language of the statute, undermine the trial court’s order, which clearly

advised J.A. that each day away from home would constitute a separate incident of

contempt, and render the court powerless to reasonably distinguish between

absconding and fleeting absence in meting out an appropriate punishment.3

      Having concluded that the trial court complied with all applicable procedural

requirements and that the imposition of consecutive sentences was legal under the

circumstances demonstrated, the petition for writ of habeas corpus is denied.

      Petition Denied.




3 Indeed, if we were to adopt the construction urged by J.A., there would be no
incentive for a juvenile to return home at all, knowing, for example, that the trial
court could punish a ten-day absconder no more harshly than an overnight violator.

                                         9
