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

                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT

NED POLE,                                    )
                                             )
             Appellant,                      )
                                             )
v.                                           )         Case No. 2D14-4776
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed August 10, 2016.

Appeal from the Circuit Court for Polk
County; Jalal Harb, Judge.

Howard L. Dimmig, II, Public Defender, and
Lisa Lott, Assistant Public Defender,
Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Johnny T. Salgado,
Assistant Attorney General, Tampa, for
Appellee.



LaROSE, Judge.


             Ned Pole appeals his conviction and sentence for direct criminal

contempt. We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A). He argues that he

was entitled to counsel at the contempt hearing. The trial court did not comply with the

requirements for conducting a direct criminal contempt proceeding under the procedural
protections of Florida Rule of Criminal Procedure 3.830. We also conclude that Mr.

Pole's conduct, at most, constituted indirect criminal contempt to which the protections

of Florida Rule of Criminal Procedure 3.840 apply. Accordingly, we reverse and direct

the trial court to vacate the contempt order.

                                       Relevant Facts

              The contempt proceeding against Mr. Pole stemmed from a divorce action

filed by his wife. The trial court scheduled a final hearing on this civil matter for the

morning of September 8, 2014. On September 3, Mr. Pole filed a pro se motion to

continue the hearing. He claimed that he was unemployed and unable to obtain

counsel. The trial court denied the motion. Our record does not indicate whether Mr.

Pole received a copy of the order denying his motion prior to the scheduled final

hearing.

              Because we do not have a complete transcript of the September 8

proceeding, we can glean what happened only from the text of the contempt order.

Apparently, Mr. Pole called the trial court that morning to inquire about his motion to

continue; he learned that the trial court had denied the motion. Mr. Pole said that he

would be about thirty minutes late for the hearing. Mr. Pole arrived thirty-eight minutes

late looking disheveled and acting "somewhat confused." Mr. Pole disclaimed receipt of

an earlier voicemail message notifying him that his continuance request was denied.

He volunteered that he had drunk two beers the prior evening. He denied being under

the influence of alcohol, medication, or illegal drugs. Yet, Mr. Pole "kept interrupting the

Court as the Court explained to him the ruling on his request to continue. His

interruptions continued throughout the proceedings." Rather than initiate contempt

proceedings at this point, it appears that the trial court, at Mr. Pole's suggestion,
                                             -2-
directed him to the drug lab for drug and alcohol testing. The results were negative for

drugs, but positive for alcohol; the breathalyzer readings were .208 and .216.

              The trial court then informed Mr. Pole that it was conducting a direct

criminal contempt hearing as a result of his behavior. The trial court reminded him that

he was late and concluded that he was under the influence of alcohol. The conduct

"embarrassed, hindered and obstructed th[e] Court in the administration of justice

and/or his actions interfered with a judicial function. . . . [D]ue to his actions, the Final

Hearing [in the dissolution action] ha[d] to be continued because the allocated time had

expired and . . . he was not in a condition to represent himself."

              The trial court gave Mr. Pole an opportunity to show cause why he should

not be held in direct criminal contempt. He repeated that he had only two beers the

night before. Mr. Pole stated that he did not drive to the courthouse himself because he

did not want to violate the law. Mr. Grimm, who had driven Mr. Pole to the courthouse

that morning, testified that when he arrived at Mr. Pole's home, Mr. Pole was not ready.

Mr. Grimm suspected that Mr. Pole was under the influence of alcohol. The trial court

held Mr. Pole in direct criminal contempt, adjudicated him guilty, and sentenced him to

fifteen days in jail. On appeal, Mr. Pole argues that the trial court should have given him

an opportunity to seek counsel for the contempt hearing.

                   Plank v. State and the Contemnor's Right to Counsel

              Our precedent holds that a contemnor is entitled to counsel in a direct

criminal contempt proceeding. Al-Hakim v. State, 53 So. 3d 1171, 1174 (Fla. 2d DCA

2011); Woods v. State, 987 So. 3d 669, 674 (Fla. 2d DCA 2007). The Fourth District

agrees. See Hayes v. State, 592 So. 2d 327, 329 (Fla. 4th DCA 1992). However, the

First District holds otherwise. See Plank v. State, 130 So. 3d 289, 290 (Fla. 1st DCA
                                             -3-
2014). Because of this interdistrict conflict, the supreme court agreed to hear Plank to

determine "whether an individual is entitled to counsel in direct criminal proceedings

before incarceration is imposed as punishment." Plank v. State, 190 So. 3d 594, 596

(Fla. 2016); see art. V, § 3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(iv). We

anxiously awaited the supreme court's opinion in Plank, hoping for guidance on the

conflict issue. The supreme court issued its Plank decision on March 17, 2016. The

decision is now final; the mandate issued on April 14, 2016. Apparently, neither the

State nor Mr. Plank sought rehearing. See Florida Supreme Court Case Docket: Case

Number: SC14-414, Florida Supreme Court,

http://jweb.flcourts.org/pls/docket/ds_docket (last visited May 4, 2016).

              It is not evident to us, however, that the supreme court resolved the

conflict issue. Three justices joined in an opinion concluding that there is no right to

counsel in a direct criminal contempt proceeding as long as any incarceration does not

exceed six months. Plank, 190 So. 3d at 596. These three justices also concluded that

Mr. Plank's conviction should be vacated because his conduct amounted to no more

than indirect criminal contempt. Id. One justice concurred in result only. Id. The three

remaining justices agreed that Mr. Plank's conduct did not constitute direct criminal

contempt and concurred in the opinion to the extent it vacated Mr. Plank's conviction.

Id. at 608. These justices, however, thought that Mr. Plank had a right to counsel in a

direct criminal contempt proceeding. Id. Thus, six justices joined in an opinion holding

that Mr. Plank had not committed direct criminal contempt. No majority joined an

opinion resolving the conflict issue.

              "Under the Florida Constitution, both a binding decision and a binding

precedential opinion are created to the extent that at least four members of the Court
                                            -4-
have joined in an opinion and decision." Santos v. State, 629 So. 2d 838, 840 (Fla.

1994) (citing art. V, § 3(a), Fla. Const.). "In [this] context . . . , a 'decision' is the result

reached by the Court in the case, as distinguished from the 'opinion.' " Id. at 840 n.1.

"A concurring in result only opinion indicates agreement only with the decision, that is,

the official outcome and result reached, but a refusal to join in the majority's opinion and

its reasoning." Harry Lee Anstead, Gerald Kogan, Thomas D. Hall & Robert Craig

Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L.

Rev. 431, 460 (2005); see also Byrd v. State, 880 So. 2d 616, 617 (Fla. 2004) (holding

that First District opinion declaring statute invalid was not the actual decision of the

district court because only one of three judges signed it and the other two judges

concurred in result—affirming the trial court's denial of Byrd's motion to dismiss—but did

not join in the opinion); Floridians for a Level Playing Field v. Floridians Against

Expanded Gambling, 967 So. 2d 832, 834 (Fla. 2007) (holding that vote of an appellate

court judge concurring in the judgment without indicating agreement with decision to

certify question did not count as agreeing with certification).

               Because Plank was a three-three decision on the right to counsel in a

direct contempt proceeding, the supreme court, apparently, did not resolve the certified

conflict between the First District in Plank and the Second and Fourth Districts in Al-

Hakim, 53 So. 3d 1171; Woods, 987 So. 3d 669; and Hayes, 592 So. 2d 327. Because

six justices concurred in an opinion concluding that Mr. Plank's conduct did not amount

to direct criminal contempt, Plank does not require us to dwell much longer on the

conflict issue pressed before the supreme court and raised by Mr. Pole, here.




                                               -5-
                            The Need for an Adequate Record

              As guidance for our able and busy trial judges, however, we note, as an

initial matter, that to affirm a conviction of direct criminal contempt, "there must be

evidence in the record that the trial court complied with the procedural requirements of

Fla. R. Crim. P. 3.830 . . . for prosecuting a direct criminal contempt." Chamberlain v.

Chamberlain, 588 So. 2d 20, 23 (Fla. 5th DCA 1991). "[T]he contemnor's right to due

process require[s] that the trial court ensure that a record is made of a criminal

contempt proceeding. . . . [F]acially sufficient claims on plenary appeal from an

adjudication of contempt . . . which cannot be refuted by the record will invariably

mandate vacation of the judgments." Blalock v. Rice, 707 So. 2d 738, 740 (Fla. 2d DCA

1997); see also Chamberlain, 588 So. 2d at 23 (stating that the trial court must "ensure

that a record of the entire sentencing proceeding is made and preserved in such a

manner that it can be transcribed as needed" (quoting Fla. R. Crim. P. 3.721)). Our

record includes a transcript of only the beginning of the dissolution hearing. The

courtroom clerk announced, "And per the Judge we don't need to be on the record."

Both parties acknowledge that the contempt proceeding was not recorded.

              Because we do not have a full record of the contempt proceeding, our

appellate review is stymied. We recognize that the contempt proceeding against Mr.

Pole arose in a civil division of the circuit court. Although a court reporter was present,

we are also aware that many civil matters commonly proceed without a court reporter.

Because the trial court went forward with a criminal proceeding a different set of rules

applied. On this basis, alone, we would be compelled to reverse.




                                            -6-
                         Plank Redux; Indirect Criminal Contempt

              Even if armed with a complete record, we would still reverse because the

trial court mischaracterized Mr. Pole's misconduct as direct criminal contempt. Plank

guides our reasoning. We must, briefly, return to the facts in Plank. While providing

background information as a prospective juror, "[Mr. Plank] responded that he should

not have to serve on a jury because he was 'able to evade the military draft,' worked

thirteen-hour days, had a '4F' military designation, and was a drunk." Plank, 190 So. 3d

at 598. Mr. Plank slept during some of jury selection. Id. at 598-99. Some jurors

complained that he smelled of alcohol and that they had trouble waking him up at a

break. Id. at 599. The trial court directed an officer to administer a breathalyzer test,

which occurred outside the judge's presence. Id. at 597.

              An hour later, the trial judge held a contempt hearing. Id. The trial court

informed Mr. Plank that his blood alcohol level was .111 and expressed its belief that

Mr. Plank may have driven to the courthouse under the influence of alcohol. Id. at 597-

98. Mr. Plank testified that he had worked late delivering magazines and had "only" a

couple of beers in the morning. Id. at 599.

              The trial court found Mr. Plank in direct criminal contempt for being drunk,

disrupting jury selection, and distracting other jurors. Id. at 598. The trial court

sentenced him to thirty days in jail. Id. at 599. On appeal, Mr. Plank argued that he

was entitled to seek counsel for the direct contempt proceeding. Id. The First District

affirmed. Plank v. State, 130 So. 3d 289, 290 (Fla. 1st DCA 2014). As discussed

earlier, six members of the supreme court—three members in the decision and three in

Justice Pariente's concurrence—agreed to reverse, concluding that the trial court erred

in failing to appoint counsel for Plank because his conduct did not involve direct criminal
                                            -7-
contempt. Plank, 190 So. 3d at 600 (LaBarga, C.J., and Lewis and Polston, JJ.), 608

(Pariente, Quince, and Perry, JJ., concurring in part and dissenting in part).

              "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.' " Id. at 606 (quoting In re Oliver, 333

U.S. 257, 275 (1948)); see also Fla. R. Crim. P. 3.830 ("A criminal contempt may be

punished summarily if the court saw or heard the conduct constituting the contempt

committed in the actual presence of the court."). Otherwise, the allegedly contemptuous

conduct is indirect criminal contempt, subject to the more generous procedural safeguards

set forth in rule 3.840. Plank, 190 So. 3d at 606; Kelley v. Rice, 800 So. 2d 247, 251 (Fla.

2d DCA 2001). "Whenever a judge must take testimony during a criminal contempt

proceeding or rely on additional evidence not directly observed by the trial judge, the

proceeding is no longer direct criminal contempt but becomes indirect criminal

contempt." Plank, 190 So. 3d at 607. "[K]nowledge acquired from the testimony of

others, or even from the confession of the accused, would not justify conviction without

a trial in which there was an opportunity for defense." In re Oliver, 333 U.S. at 275.

              The supreme court explained why Mr. Plank's conduct was indirect, rather

than direct, criminal contempt, as follows:

              In determining whether Plank committed criminal contempt,
              the trial judge took testimony from a probation officer
              regarding Plank's blood-alcohol level after the officer
              administered a breathalyzer test. In addition, the trial judge
              relied on off-the-record statements from the jurors that Plank
              smelled of alcohol and Plank's own admissions that he drank
              before attending jury duty and that he drove to the
              courthouse.

                                              -8-
Plank, 190 So. 3d at 606. Similarly, here, the trial judge took testimony from Mr. Grimm

concerning Mr. Pole's behavior before arriving at the courthouse. The trial court relied on

Mr. Pole's own admissions that he drank two beers the previous night and did not drive to

the courthouse so as not to break the law. The trial court also relied on lab results

obtained outside its presence.

              "[B]ecause of the summary nature of the procedures in direct criminal

contempts, any doubt as to the category in which the act falls should be resolved in favor

of the contemnor." Fisher v. State, 248 So. 2d 479, 488 (Fla. 1971); accord Turner v.

State, 283 So. 2d 157, 160 (Fla. 2d DCA 1973). Based on Plank, we conclude that the

trial court erred in failing to allow counsel for Mr. Pole because the conduct at issue did not

involve direct criminal contempt. See Fla. R. Crim. P. 3.840(d). Therefore, we reverse Mr.

Pole's conviction for direct criminal contempt and direct the trial court to vacate the order

on appeal.

                                         Conclusion

              Reversed and remanded for proceedings consistent with this opinion.



CASANUEVA, J., Concurs with opinion.
LUCAS, J., Concurs in part and dissents in part.




                                             -9-
CASANUEVA, Judge, Concurring.

               Unlike most cases this court reviews in which a person has lost their

liberty, the primary factual record before us is the trial court's order. In its order, the trial

court found Mr. Pole in direct criminal contempt based on Mr. Pole's behavior in court,

the testimony of Mr. Pole, the results of the alcohol test, and the testimony of Mr. Grimm

at the contempt proceeding. As noted in the respective opinions of Judges LaRose and

Lucas, the sequence of events impacts the analytical outcome of whether the trial court

punished for a direct criminal contempt or an indirect criminal contempt. Here, the trial

court's order fails to identify the order in which most of the events occurred. Assuming

the alcohol test was performed before the criminal contempt hearing, the proceeding

involved indirect, not direct, criminal contempt.

               In my view, the burden of providing a record in instances such as this

rests with the trial court. It is the trial court which seeks to exercise its authority to

punish by depriving the alleged offender of his liberty. Accordingly, I join in the section

of Judge LaRose's opinion regarding the need for an adequate record in contempt

proceedings. Further, as Judge LaRose noted in his opinion, where there are any

doubts as to whether a contempt proceeding involves direct or indirect criminal

contempt, the category in which the proceeding falls should be resolved in favor of the

contemnor. Consequently, the record in this case should be interpreted to indicate that

the alcohol test was performed before the trial court conducted the contempt hearing.

Accordingly, I join Judge LaRose's opinion to reverse the conviction for direct criminal

contempt and to vacate the order.1


               1
             Although it is not necessary to determine if a right to counsel exists in this
instance because it is not essential to the resolution of the case, in examining that
                                           - 10 -
                Although in this instance I did not join Judge Lucas's opinion, I do agree

with a primary conclusion he reached when addressing the "assumption that the Florida

Rules of Criminal Procedure hold their own innate, organic power to require the

appointment of counsel in a summary contempt proceeding." In this context, I agree

fully with his analysis that "[a] rule of procedure cannot create a substantive right that

would not otherwise exist."

                A right to counsel must originate from either the national or state

constitution or by federal or state legislation. In the first instance, the right is provided

by voters and their ratification of the constitutional provision in question; in the

legislative arena, the right flows from the representatives of the citizens. To afford the

judicial branch with the power—through the passage of rules of procedure—to grant

such rights appears to me to be contrary to the separation of powers delineated by the

constitution.




issue, it appears that the cases of In re Oliver, 333 U.S. 257 (1948), and
Commonwealth v. Moody, 125 A.3d 1 (Pa. 2015), would provide a good starting point
for such analysis.
                                           - 11 -
LUCAS, Judge, Concurring in part and dissenting in part.

              The record before us is admittedly scant, but it illustrates a not uncommon

occurrence that sometimes frustrates the work of our trial courts—when someone

disturbs the course of a court proceeding. I do not believe that our review here has

been stymied from the lack of a transcript or that the proceeding against Mr. Pole was

anything other than the summary direct criminal contempt proceeding that the circuit

court's order stated it was. Therefore, I respectfully dissent from the majority's decision

to construe the proceeding below as something that, I believe, it was not.

              Because I conclude that Mr. Pole was indeed subjected to a direct, not an

indirect, criminal contempt proceeding, I would confront the issue Mr. Pole argued in his

appeal—his right to counsel in a summary direct criminal contempt proceeding. On that

point, I would distance our court's jurisprudence, as much as possible, from what I

believe were the erroneous underpinnings of Woods, 987 So. 2d 669, and its progeny

case, Al-Hakim, 53 So. 3d 1171. Nevertheless, inasmuch as those decisions remain

intact and stare decisis binds us to follow them, I reluctantly concur, based on their

continuing authority, with the majority's decision to reverse Mr. Pole's conviction.

                                             I.

              The circuit court's order describes the procedural history that preceded

what was supposed to have been a final hearing in Mr. Pole's case. Apparently, Mr.

Pole showed up late and intoxicated for his dissolution of marriage trial. An

inauspicious beginning to any kind of court proceeding, to be sure, but his misconduct

did not end there. According to the circuit court's findings, besides being late, Mr. Pole

"kept interrupting the [c]ourt," his "interruptions continued throughout the proceedings,"

and the trial had to be continued because "the allocated time had expired and . . . [Mr.
                                           - 12 -
Pole] was not in a condition to represent himself." By his misconduct, Mr. Pole

effectuated the very continuance the court had previously denied.

              The court informed Mr. Pole that it was convening a summary direct

criminal contempt hearing "as a result of his behavior." According to the order's

findings, the court properly afforded Mr. Pole an opportunity to present testimony to

show cause why he should not be adjudicated guilty, as well as to present evidence of

excuse or mitigating circumstances. See Fla. R. Crim. P. 3.830. The court allowed Mr.

Pole to present a witness who was in attendance, a Mr. Grimm, whose testimony,

according to the court's mention of it, could fairly be characterized as collateral to the

issue of Mr. Pole's conduct. The order also references drug and alcohol testing that Mr.

Pole "agreed to submit to," presumably, during his presentation of evidence and

testimony. The court then adjudicated Mr. Pole guilty of direct criminal contempt, citing

the applicable procedural rule for a summary procedure, rule 3.830, and sentenced him

to fifteen days in the Polk County Jail.

              The majority construes the record we have as one evincing an indirect

criminal contempt proceeding.2 As such, citing to Plank, 190 So. 3d at 602, and Kelley,

800 So. 2d at 251 (Fla. 2d DCA 2001), the majority concludes that Mr. Pole was entitled

to a proceeding "subject to the more generous procedural safeguards set forth in rule

3.840," including the right to court-appointed counsel. I respectfully disagree. The circuit


              2
               Mr. Pole never argued this point until after we directed supplemental
briefing from the parties following the release of the Florida Supreme Court's decision in
Plank, 190 So. 2d 594. In terms of the record before us, I, too, am troubled by the lack
of a hearing transcript (perhaps more so than Mr. Pole, who did not argue this point
either). However, since I do not believe a summary contempt proceeding can be
likened to a "criminal prosecution," see infra n.4, I am not prepared to hold, as the
majority appears to, that the failure to have a court reporter record and transcribe a
summary contempt proceeding amounts to fundamental error.
                                            - 13 -
court's findings sufficiently describe conduct that occurred "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, [and] are actually observed

by the court." In re Oliver, 333 U.S. at 275 (1948) (quoting Cooke v. U.S., 267 U.S. 517

(1925)). Mr. Pole delayed the start of his trial by appearing more than a half hour late;

when he arrived, he interrupted the presiding judge, repeatedly; and, if we accept the

court's assessment, he was in "no condition to represent himself"; all of which

culminated in the court having to continue his trial over an opposing party's prior

objection and in contravention of the court's prior ruling. Regardless of whether his

conduct was the result of alcohol consumption, or boorish manners, stress, or some

other concoction of influences that arose before he came to court, it was clearly Mr.

Pole's disruptive behavior during court that gave rise to the summary proceeding

against him.

               Now it is true that if the summary proceeding and the court's adjudication

had been predicated on first obtaining the results of Mr. Pole's drug and alcohol test—

that is, if the presiding judge had to rely on any evidence outside of what he witnessed

first-hand—then the court could not have convened a summary proceeding for direct

criminal contempt against Mr. Pole. See In re Oliver, 333 U.S. at 275; Plank, 190 So.

3d at 596; Bryant v. State, 851 So. 2d 823, 824-25 (Fla. 2d DCA 2003) (vacating

judgment and sentence for direct criminal contempt based on defendant's shouting

obscenities as she walked by a courtroom where the State had to produce a witness to

describe what had transpired and what the defendant had said). But I do not believe

that is what occurred here. Rather, as I read this order, Mr. Pole voluntarily agreed to

have a drug and alcohol test during the summary proceeding. It does not appear to me
                                           - 14 -
that this circuit judge predicated convening the summary proceeding on first obtaining

the results of a court-ordered alcohol test or that he premised the guilty adjudication or

sentence on the results of that test,3 unlike the circuit judge in Plank, who very clearly

did both. 190 So. 3d at 597 (noting that, after receiving complaints about prospective

juror's apparent intoxication, defendant was ordered to take a breathalyzer test outside

of court, following which, "an hour later . . . the trial judge held a contempt hearing"). If

Mr. Pole's behavior, if his contumacious conduct, could be characterized as having

occurred outside of the presiding judge's presence, then I would agree with the

majority's approach and analysis. But I am of the opinion that Mr. Pole's proceeding

was, as the circuit court informed him, a summary direct criminal contempt

proceeding—properly convened because he disrupted his trial to the point that it had to

be canceled.

                                              II.

               I turn now to the issue Mr. Pole originally pursued in this appeal, his right

to counsel. Relying on this court's precedent in Al-Hakim, 53 So. 3d 1171, Mr. Pole

contends that his conviction must be reversed because he was not appointed counsel at

any point before or during his contempt hearing. As the majority observes, the issue of

whether a defendant has the right to court-appointed counsel in a summary direct

criminal contempt proceeding was (and still is) a point of conflict among three district

courts of appeal, including ours. Compare Al-Hakim, 53 So. 3d 1171 (holding that an



               3
               The reference to Mr. Pole agreeing to submit to a drug and alcohol test is
within a subheading of the order that reads, "The testimony of Mr. Pole." Other than
recounting the results of his drug and alcohol testing in a subsequent section of the
order, it does not appear that the circuit court relied on those test results in its decision
to convene the summary proceeding or in its adjudication and sentence.
                                            - 15 -
indigent defendant has the right to court-appointed counsel in a summary direct criminal

contempt proceeding), and Hayes, 592 So. 2d at 329 (Fla. 4th DCA 1992) (same), with

Plank, 130 So. 3d at 290 (Fla. 1st DCA 2014) (certifying conflict with Al-Hakim and

holding that the Sixth Amendment does not confer a right to counsel in a summary

direct criminal contempt proceeding). I share the majority's assessment that the

supreme court in Plank neither resolved the conflict issue before it nor reversed our

court's pronouncement in Al-Hakim concerning the right to counsel in summary direct

criminal contempt proceedings. On that discrete issue, no opinion in Plank garnered a

majority: three justices rejected the notion that a right to counsel exists on any basis,

190 So. 3d at 596; three believed that it does (or, at least, could) on multiple bases, id.

at 608; and the seventh justice concurred only in the result of quashing the affirmance

of the defendant's conviction for direct criminal contempt, id. at 596. Thus, we are left

with our court's precedent in Al-Hakim and that case's origin, Woods. The central

holdings in these cases—whether tinged or buttressed by the competing opinions in

Plank—still stand and must, therefore, be examined and applied to Mr. Pole's case.

                                             A.

              In Woods, we declared—for the first time in this district—that an indigent

defendant is entitled to court-appointed counsel in a summary direct criminal contempt

proceeding initiated by a presiding judge. 987 So. 2d at 676. Although the Woods

opinion included an extensive exposition on the development of constitutional law

concerning this "difficult and . . . unresolved issue," id. at 674, our court purposely

avoided a constitutional justification for our holding. Instead we fashioned this

expansion of the right to counsel in summary contempt proceedings from a less-than-



                                            - 16 -
obvious reading of our State's rules of criminal procedure—in particular, Florida Rules of

Criminal Procedure 3.010 and 3.111:

                    The trial court's failure to ensure that Mr. Woods
             actually had counsel present to represent him regarding the
             alleged direct criminal contempt violates the Florida Rules of
             Criminal Procedure, even if it is unclear whether that action
             violates federal constitutional law. Although the
             constitutional dimension of this issue is worthy of careful
             consideration, the issue in this case is actually resolved by
             the requirements of a lowly rule of criminal procedure.

                    The Florida Rules of Criminal Procedure apply in all
             criminal proceedings in Florida state courts "including
             proceedings involving direct and indirect criminal contempt."
             Rule 3.111(a) provides for appointment of counsel at first
             appearance, and rule 3.111(b) requires counsel for indigent
             persons in all prosecutions for offenses punishable by
             incarceration.

Id. at 674. Drawing these rules together, we concluded in Woods "that the Florida

Rules of Criminal Procedure required the availability of appointed counsel" for a

summary direct criminal contempt "prosecution." Id. Later, in Al-Hakim, we reiterated

that rule 3.111(b) requires the appointment of counsel in a summary direct criminal

contempt proceeding, notwithstanding rule 3.830's silence on that subject. 53 So. 3d at

1173-74.4 The provisions within rule 3.111(b), we held, required the presiding judge "to


             4
                 Trying to parse procedural rules to answer the constitutional question of
whether a defendant has the right to counsel in summary contempt proceedings is, I
believe, a discursive approach to the problem. But even if we assume that the rules of
criminal procedure could somehow corner the entirety of this constitutional issue within
their text, our court's interpretation of that text was likely flawed. As we acknowledged
in Al-Hakim, rule 3.830, the operative rule that "outlines the procedural requirements for
direct criminal contempt," does not require the appointment of counsel in a summary
direct criminal contempt proceeding. 53 So. 3d at 1173. Rule 3.830 begins: "A criminal
contempt may be punished summarily if the court saw or heard the conduct constituting
the contempt committed in the actual presence of the court." To my reading, that
provision is clear and unambiguous. Thus, in Woods and Al-Hakim, we elevated rule
3.830's silence concerning rule 3.111(b)'s requirement to appoint counsel to effectively
abrogate the plain language of rule 3.830. See Brown v. State, 715 So. 2d 241, 243
                                              - 17 -
determine whether Mr. Al-Hakim was indigent and therefore entitled to the appointment

of counsel in this direct criminal contempt proceeding in which Mr. Al-Hakim, a member

of the public, was taken into custody." Id. at 1174.

                                             B.

              Left unsaid in Woods and Al-Hakim was the assumption that the Florida

Rules of Criminal Procedure hold their own innate, organic power to require the



(Fla. 1998) (holding that rule of criminal procedure, if unambiguous, "must be accorded
its plain and ordinary meaning" and observing that statutory rules of construction also
apply to the construction of procedural rules); cf. Jones v. ETS of New Orleans, Inc.,
793 So. 2d 912, 914-15 (Fla. 2001) ("A basic tenet of statutory interpretation is that a
'statute should be interpreted to give effect to every clause in it, and to accord meaning
and harmony to all of its parts.' " (quoting Acosta v. Richter, 671 So. 2d 149, 153-54
(Fla. 1996))). We also ignored the plain language in rule 3.840, governing indirect
criminal contempt proceedings, which clearly addresses appointment of counsel. See
Fla. R. Crim. P. 3.840(d) ("The defendant is entitled to be represented by counsel . . .
."). Although not binding, it appears that three of the justices in Plank were inclined to
reject our court's interpretation of the rules of criminal procedure on this point, as well:

              Plank's last contention is that he was entitled to the
              appointment of counsel based on [rule] 3.111(b) . . . . Rule
              3.111(b) requires the appointment of counsel for indigent
              persons "in all criminal prosecutions for offenses punishable
              by incarceration." However, this general rule does not trump
              the specific rule governing direct criminal contempt, [rule]
              3.830, which specifically addresses the procedures that
              govern direct criminal contempt proceedings.

                      ....

              In contrast, [rule] 3.840 governs indirect criminal contempt,
              which involves conduct committed outside the presence of
              the court. Subsection (d) of rule 3.840 explicitly provides
              that a defendant is entitled to be represented by counsel at
              the contempt hearing. . . . Under our precedent, a specific
              rule trumps a general rule. Thus, applying that principle
              here, the specific rule governing direct criminal contempt
              trumps a general rule pertaining to the right to counsel.

190 So. 3d at 603 (citations omitted).

                                           - 18 -
appointment of counsel in a summary contempt proceeding. They assuredly do not. A

rule of procedure cannot create a substantive right that would not otherwise exist. See,

e.g., Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991)

(explaining distinction between substantive and procedural law; "[s]ubstantive law has

been defined as the part of the law which creates, defines, and regulates rights" (citing

State v. Garcia, 229 So. 2d 236 (Fla. 1969))); Williams v. State, 932 So. 2d 1233, 1237

(Fla. 1st DCA 2006) (holding that professional standards for lead counsel in capital

cases described in rule 3.112(f) did not create an independent "right" to counsel who

met those qualifications, and remarking that "[s]ubstantive law creates substantive

rights; rules of procedure . . . 'merely provide the remedies to enforce rights' " (quoting

State v. Dorian, 619 So. 2d 311, 313 (Fla. 3d DCA 1993))); cf. In re Florida Rules of

Criminal Procedure, 272 So. 2d 65, 65-66 (Fla. 1972) (Adkins, J., concurring) ("Practice

and procedure encompass the course, form, manner, means, method, mode, order,

process or steps by which a party enforces substantive rights or obtains redress for their

invasion. 'Practice and procedure' may be described as the machinery of the judicial

process as opposed to the product thereof."); Birnholz v. 44 Wall St. Fund, Inc., 880

F.2d 335, 339 (11th Cir. 1989) (observing that procedural rules are "legal machinery

and not a fountain of legal rights"). The rules of criminal procedure are no exception. A

constitutional right to counsel in a summary direct contempt proceeding could only

emanate from a provision within the constitution. Our holdings in Woods and Al-Hakim

should never have thrust so much jurisprudential freight upon a "lowly rule of criminal

procedure," 987 So. 2d at 674, or on any other rule of procedure. It is a weight no

procedural rule was meant to carry.



                                           - 19 -
              If Mr. Pole has a constitutional right to counsel in a summary direct

criminal contempt proceeding—and I do not believe that he does, at least under the

Sixth Amendment5—then it must derive from a provision found within the State or

Federal constitutions, not from a novel interpretation of our state's rules of criminal

procedure. See Plank, 190 So. 3d at 602 (Labarga, C.J., and Lewis, and Polston, JJ.,

concurring) ("Plank does not have a Sixth Amendment right to counsel prior to being

incarcerated for direct criminal contempt, as long as the period of incarceration does not

exceed six months."). Whether the constitution affords that right in these proceedings is

indeed a topic "worthy of careful consideration," Woods, 987 So. 2d at 674, but our

precedent, unfortunately, would seem to foreclose its consideration at all.



              5
                 The Sixth Amendment provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the assistance of counsel for his defense."
Similarly, article I, section 16 of the Florida constitution guarantees that "[i]n all criminal
prosecutions the accused . . . shall have the right . . . to be heard in person, by
counsel[,] or both." A summary direct criminal contempt proceeding would not seem to
fall within the textual or original meaning of a "criminal prosecution," because summary
contempt proceedings are not commenced by the State, are not truly "adversarial" in
nature (insofar as there is no opposing party or adverse litigant), and, by virtue of their
summary nature, purposely exclude most of the formal requirements of criminal cases
such as the filing of a formal charge, indictment, or information, holding an arraignment,
or affording the right to a trial by jury. Cf. Moore v. Illinois, 434 U.S. 220, 226-27 (1977)
(clarifying that the right to counsel applies "only to corporeal identifications conducted at
or after the initiation of adversary judicial criminal proceedings—whether by way of
formal charge, preliminary hearing, indictment, information, or arraignment. This is so
because the initiation of such proceedings marks the commencement of the 'criminal
prosecutions' to which alone the explicit guarantees of the Sixth Amendment are
applicable."); U.S. v. Wilson, 421 U.S. 309, 316 (1975) ("The face-to-face refusal to
comply with the court's order itself constituted an affront to the court, and when that kind
of refusal disrupts and frustrates an ongoing proceeding . . . summary contempt must
be available to vindicate the court's authority . . . ."); Searcy v. State, 971 So. 2d 1008,
1013-14 (Fla. 3d DCA 2008) (noting that summary direct criminal contempt proceedings
pose "an exceptional situation as the charging court is afforded significant power to act
simultaneously and summarily as prosecutor, witness, and judge. . . . [A]n individual
charged with direct criminal contempt neither enjoys a right to a formal hearing on the
charges nor is he entitled to legal representation . . . .").
                                               - 20 -
              I believe our court was wrong to craft a constitutional safeguard from

procedural rules that were crafted by a court-appointed committee. But unless we

recede from our holdings in Al-Hakim and Woods (or a majority of the Florida Supreme

Court can reach a consensus on this admittedly contentious point) we are bound to

follow the law that has been laid down in our district. For that reason, I must concur

with the court's decision to reverse Mr. Pole's conviction.




                                           - 21 -
