       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 09, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2495
                         Lower Tribunal No. 15-19745
                             ________________


                              Chakaris Twine,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Alberto Milian,
Judge.

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant
Public Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney
General, for appellee.


Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.

      ROTHENBERG, J.
      Chakaris Twine appeals a judgment of contempt and the sentence imposed

by the trial court after a full hearing.       Because the defendant’s actions were

contemptuous and the trial court complied with Florida Rule of Criminal

Procedure 3.830, we find no abuse of discretion and affirm the judgment

adjudicating Twine in contempt of court. See Thomas v. State, 752 So. 2d 679,

685 (Fla. 1st DCA 2000) (holding that a trial court’s order finding a defendant in

direct criminal contempt is reviewed for an abuse of discretion). We only write to

express this Court’s concern regarding the sentence imposed, which, although

lawful, appears to be excessive based on the facts of this case.

      The record reflects the following. Twine was charged with one count of

possession with intent to sell cocaine. When the trial court denied Twine’s motion

to release Twine on his own recognizance or reduce his bond at a status

conference, Twine responded by stating, “This is a bunch of bullshit.” When the

trial court confronted Twine with his use of profanity in court, Twine admitted that

he had uttered the words heard by the trial court and immediately apologized.

When the trial court asked Twine if there was any reason he could offer as to why

he should not be held in contempt of court, Twine responded, “No, sir.” Because

Twine was represented by counsel, the trial court also afforded Twine’s counsel an

opportunity to present argument as to why the court should not hold Twine in

contempt of court. Counsel readily admitted that Twine had used the profanity



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heard by the trial court, but argued that when Twine’s bond was not reduced, he

became emotional and reacted in the heat of the moment, but immediately

regretted his outburst and apologized to the court.

      After noting it had always treated Twine with respect and courtesy, the trial

court found Twine in direct contempt of court. Before sentencing Twine, the trial

court asked Twine if he had anything to offer as an excuse or in mitigation of his

conduct. Twine explained that he was upset when the trial court refused to release

him on his own recognizance because he believed that he had been unfairly

arrested by the police and he was needed at home. He explained that his seventy-

six year old mother has breast cancer, recently had surgery, and was receiving

chemotherapy treatment. The defendant further explained that he was his mother’s

sole caretaker and that she could not care for herself. Despite Twine’s apology,

remorse, and explanation, the trial court sentenced him to 180 days in the county

jail, the maximum sentence allowable for direct criminal contempt of court where

a defendant has not been given a jury trial.1


1 Criminal contempt is a common law crime, with a maximum sentence of twelve
months’ imprisonment. See § 775.02, Fla. Stat. (2015) (providing that “[w]hen
there exists no such provision by statute, the court shall proceed to punish
[common-law offenses] by fine or imprisonment, but the fine shall not exceed
$500, nor the imprisonment 12 months”). However, as the Florida Supreme Court
held in Aaron v. State, 284 So. 2d 673, 676-77 (Fla. 1973), any criminal contempt
which is to be punished by a sentence of six months or longer requires a jury be
empaneled to try the case. If the sentence is less than six months, the judge may
proceed without a jury.

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      We acknowledge that the use of profanity in court may constitute direct

criminal contempt of court, see, e.g., Michaels v. Loftus, 139 So. 3d 324 (Fla. 3d

DCA 2014) (affirming an order of contempt where defense counsel swore at the

prosecutor in open court), and that the nearly identical language was found to be

subject to a finding of direct criminal contempt in Martinez v. State, 339 So. 2d

1133, 1134-35 (Fla. 2d DCA 1976) (affirming a finding of direct criminal

contempt where the defendant stated, “That’s a bunch of bull shit,” during a court

proceeding). We also acknowledge that the power to punish for contempt is

essential to the administration of justice. See Berman v. State, 751 So. 2d 612, 616

(Fla. 4th DCA 1999). However, the court’s criminal contempt power should be

used cautiously and sparingly, Berman, 751 So. 2d 616,2 and the punishment

should fit the crime. In other words, the punishment should take into consideration

the contemptuous conduct and all of the surrounding circumstances.

      Here, while Twine’s behavior was inappropriate and rude, he immediately

regretted his outburst and apologized. And while Twine’s outburst may have

warranted punishment, a 180-day jail sentence appears to be excessive based on



2 See also Davila v. State, 100 So. 3d 262, 264 (Fla. 3d DCA 2012) (quoting
Emanuel v. State, 601 So. 2d 1273, 1274 (Fla. 4th DCA 1992)) (noting that “the
power to punish direct criminal contempt is one of the most unusual of the judicial
powers: the judge . . . becomes the prosecutor . . . over the very defendant who is
said to have just assailed the judicial dignity. . . . [F]or that reason, the power must
be cautiously and sparingly used”).

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the record before this Court. However, because we have no authority to reduce or

to reverse a lawfully imposed sentence, we affirm.

      Affirmed.




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