               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT

TJADA T. SMITH,                             )
                                            )
             Appellant,                     )
                                            )
v.                                          )       Case Nos. 2D12-5937
                                            )                 2D12-6016
STATE OF FLORIDA,                           )
                                            )       CONSOLIDATED
             Appellee.                      )
                                            )

Opinion filed August 8, 2014.

Appeal from the Circuit Court for
Hillsborough County; Martha J. Cook,
Judge.

Howard L. Dimmig, II, Public Defender,
and Timothy J. Ferreri, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Christina Zuccaro,
Assistant Attorney General, Tampa, for
Appellee.


ALTENBERND, Judge.

             In this consolidated appeal, Tjada T. Smith appeals adjudications of guilt

for contempt of court and the sentences imposed thereon in two cases. The State

concedes reversible error as to one of the two cases. We reverse the adjudications of
guilt and sentences in both cases due to fundamental error that occurred as a result of a

legally deficient order to show cause in this indirect criminal contempt proceeding.

              Apparently, Ms. Smith reported to law enforcement that she was the victim

of one or more offenses allegedly committed by a Mr. Brown, which resulted in the State

filing charges against him in either or both trial court case numbers 12-CF-5210 and 12-

CF-5263. The trial court clerk's docketing statements for those cases reflects that the

charge in case number 12-CF-5210 was aggravated assault with a deadly weapon and

the charges in case number 12-CF-5263 were throwing a deadly missile at, within, or

into a vehicle; burglary of a conveyance with assault or battery; and aggravated battery

with a deadly weapon. Ms. Smith did not appear on September 24, 2012, the day that a

trial was scheduled in case number 12-CF-5210 and perhaps in case number 12-CF-

5263.

              The State dropped the charges in both cases. It immediately initiated

contempt proceedings against Ms. Smith, apparently by making an oral motion for an

order to show cause. The appellate record reveals only limited information about how

the State presented its motion. A transcript of the proceeding or proceedings at which

the State made its oral motion and presented its argument for the issuance of an order

to show cause was not included in the appellate record. It appears that the State did

not file a written motion, an affidavit, or any sort of verified pleading in support of or

requesting the issuance of an order to show cause. Several days after the scheduled

trial, the trial court issued a single order to show cause directed to Ms. Smith. That

order is styled as "State of Florida [v. Brown]," case numbers 2012-CF-5210 and 2012-




                                             -2-
CF-5263. Significantly, the order to show cause makes no reference to "contempt."

The body of the order states, in pertinent part:

                      THIS CAUSE coming on for approval of the Court,
              and the Court being advised by The State of Florida that the
              State's Witness, Tjada Theresa Smith, was served with a
              subpoena on August 2nd, 2012 for Jury Trial the week of
              September 24th, 2012 by CSA #3455. On the referenced
              subpoena date; September 24th, the witness failed to
              appear before this court for jury trial it is
                      ORDERED AND ADJUDGED that the said Tjada
              Theresa Smith, is to appear . . . and show cause why she
              failed to appear.

              A hearing on the order to show cause was held on November 1, 2012.

Ms. Smith attended this hearing with her attorney. No evidence was introduced and no

testimony was presented by either the State or Ms. Smith during the portion of the

hearing concerning Ms. Smith's failure to appear. Ms. Smith's attorney argued that Ms.

Smith was not served with the subpoena and thus she did not willfully and knowingly fail

to appear. The trial court indicated that the return of service was part of the court file1

and concluded that the defense was not legally sufficient. It orally found that Ms. Smith

"failed to appear as noticed on the date and time in question which appeared to be

September 24, 2012 at 8:00 for a jury trial [in] the cause [Brown,] case number 12-

5210." Based on the foregoing finding, the court determined "[t]hat as a consequence



              1
                The initial record on appeal, which included a first supplemental record,
contained little from Mr. Brown's criminal court files. The critical subpoena and related
return were not in the initial record. Because of this and other deficiencies in the
appellate record, this court sua sponte ordered the record supplemented. The second
supplemental record, which was provided in response to our order, includes copies of
two subpoenas for deposition directed to Ms. Smith and returns of service for those
subpoenas, but it does not include a copy of the subpoena for trial and the related
return of service. Thus, the record contains no evidence that Ms. Smith was ever
served with a trial subpoena.



                                            -3-
she is in contempt of court." The trial court did not mention case number 12-CF-5263 in

its oral finding, despite the fact that the prosecutor had listed the three counts in that

case when asked by the trial court to describe the nature of the underlying charges.2

              After the trial court determined that Ms. Smith was in contempt of court,

the State requested that the court impose some period of jail time. The court then

heard Ms. Smith's testimony with respect to mitigation and the sanctions to be imposed.

It delayed sentencing to give Ms. Smith an opportunity to make arrangements for the

care of her young children.

              A sentencing hearing was held on November 14, 2012. At that hearing

the prosecutor requested that Ms. Smith be sentenced to either a few days in jail or a

short term of probation. The trial court orally pronounced that Ms. Smith was to be

sentenced to sixty days' probation and that during her probation she was to complete a

domestic violence course.

              On the same day as the sentencing hearing, the trial court rendered a

written "Judgment and Sentence" in case number 12-CF-016434 and a separate written

"Judgment and Sentence" in case number 12-CF-016436, which were not the same

case numbers as the case numbers for the underlying criminal charges against Mr.

Brown. Apparently, the clerk of the trial court had created new court files with new case

numbers for the purpose of the contempt proceedings, but the parties in this appeal




              2
             When asked the nature of the charges, the prosecutor responded "Count
One throwing a deadly missile within and to a vehicle. Count Two burglary of a
conveyance with assault or battery. Count Three aggravated battery with a deadly
weapon." These charges track those listed in the trial court clerk's docketing statement
for case number 12-CF-5263.



                                             -4-
have not explained, and the record does not reveal, the correlation of the new case

numbers to the case numbers for the underlying charges against Mr. Brown. While both

of these judgments listed the charges against Ms. Smith as "contempt of court," they did

not indicate whether the trial court adjudicated Ms. Smith guilty or whether it withheld

adjudication. Additionally, neither judgment contained "a recital of the facts constituting

the contempt of which the defendant [had] been found and adjudicated guilty." Fla. R.

Crim. P. 3.840(f).3 After Ms. Smith's notices of appeal were filed in each of these cases,

the trial court rendered a separate single order of probation that adjudicated her guilty of

"contempt of court" in the two separate cases.

              The trial court never identified the type of contempt for which Ms. Smith

was adjudicated guilty. However, in this district when a subpoenaed witness is not

tardy, but actually does not appear at a court proceeding, any effort to bring the missing

witness into court to establish that her nonappearance was an act of willful contempt

must be addressed under the rules applicable to indirect criminal contempt. See

Kelley v. Rice, 800 So. 2d 247, 253 (Fla. 2d DCA 2001).4 This is true because the



              3
               Failure to comply with rule 3.840(f) is not necessarily reversible error, but,
as this case demonstrates, it can result in a record that is confusing. See Gidden v.
State, 613 So. 2d 457, 460 (Fla. 1993) (addressing the predecessor to rule 3.840(f), the
court stated that "the rule's purpose is fulfilled when sufficient oral findings are made on
the record").
              4
                But see J.D.J. v. State, 120 So. 3d 229, 230 n.1 (Fla. 4th DCA 2013)
(opining that, absent an adequate excuse for nonappearance, a defendant's failure to
appear may be summarily punished as direct criminal contempt and recognizing that in
Kelley the Second District disagreed with the Fourth District's position on this point);
Speer v. State, 742 So. 2d 373, 373 (Fla. 1st DCA 1999) (opining that the failure to
appear in court pursuant to a court order can constitute direct criminal contempt);
Porter v. Williams, 392 So. 2d 59, 60 (Fla. 5th DCA 1981) (same); James v. State, 385
So. 2d 1145, 1145 (Fla. 3d DCA 1980) (explaining that an attorney's failure to appear at
a scheduled court hearing "may be a direct criminal contempt or, if explained, may be


                                            -5-
witness is not present in the courtroom to allow for a summary proceeding and the acts

that may or may not make the nonappearance a willful contempt necessarily occurred

outside the courtroom.

              The State concedes that because the record does not reflect the reason

Ms. Smith was found in contempt in one of the two cases, the "order" in the "second"

case must be vacated. Unfortunately, on this record, it is not entirely clear which case

number should be considered the "second" case. One difficulty in making this

determination arises from the shift in case numbers. Another difficulty arises from the

confusion in the record regarding which of Mr. Brown's cases was set for a trial and

required Ms. Smith's testimony as the victim.

              Without regard to the error that the State concedes, it is clear to us that

the contempt proceedings were fundamentally flawed from the moment of their initiation

by the State. Fundamental error occurred at that early stage of the proceeding with the

issuance of a legally deficient order to show cause. See Mix v. State, 827 So. 2d 397,

399 (Fla. 2d DCA 2002). Rule 3.840 governs the prosecution of indirect criminal

contempt proceedings. With respect to orders to show cause, it provides:

                      A criminal contempt, except as provided in rule 3.830
              concerning direct contempts, shall be prosecuted in the
              following manner:
                      (a) Order to Show Cause. The judge, on the judge's
              own motion or on affidavit of any person having knowledge
              of the facts, may issue and sign an order directed to the
              defendant, stating the essential facts constituting the criminal


shown not to be contemptuous"). See also Martinez v. State, 799 So. 2d 313, 314-15
(Fla. 2d DCA 2001) (recognizing a split in authority as to whether a failure to appear
constitutes indirect criminal contempt rather than direct criminal contempt, but declining
to decide whether the appellant's failure to appear was direct or indirect contempt
because reversal was required due to lack of proof).



                                            -6-
              contempt charged and requiring the defendant to appear
              before the court to show cause why the defendant should
              not be held in contempt of court. The order shall specify the
              time and place of the hearing, with a reasonable time
              allowed for preparation of the defense after service of the
              order on the defendant.

Fla. R. Crim. P. 3.840(a).

              Here, it is arguable that the order stated the essential facts constituting the

criminal contempt charged, but it did not direct Ms. Smith that she was to show cause

why she "should not be held in contempt of court" and nothing on the face of the order

indicated that she was being charged with criminal contempt of court. Without regard to

these deficiencies, predicating the finding of contempt on the State's unsworn motion for

an order to show cause amounted to fundamental error in this case. See Proctor v.

State, 764 So. 2d 752, 753 (Fla. 2d DCA 2000). We reach this conclusion because the

criminal contempt proceeding was initiated by the State, rather than by the judge, and

the essential facts were not supported by an affidavit, as required by rule 3.840(a), or a

suitable alternative to support the order to show cause, such as a verified pleading.

See Starchk v. Wittenberg, 411 So. 2d 1000, 1001 (Fla. 5th DCA 1982) (holding that an

unverified pleading was insufficient to support the request for an order to show cause,

but observing that "[s]ince a prosecuting attorney is allowed to verify an information on

sworn facts given him by a person with personal knowledge, such verification has been

held sufficient when the prosecuting attorney is charging a criminal contempt of court").

Based on this fundamental error, we reverse Ms. Smith's adjudications of guilt for

contempt of court and her sentences on those adjudications in both cases. Our reversal




                                            -7-
is without prejudice to the initiation of new proceedings that conform with rule 3.840.5

See Mix, 827 So. 2d at 399.

              Reversed and remanded.



KELLY and LaROSE, JJ., Concur.




              5
              In the likely event that Ms. Smith has served her sentences in full, she
may not be resentenced. Additionally, service of her sentences does not render this
appeal moot. See Sramek v. State, 946 So. 2d 1235, 1236 (Fla. 2d DCA 2007).


                                           -8-
