       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 17, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D17-963
                       Lower Tribunal No. 17-15124 ZZZ
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                                Travis White,
                                    Petitioner,

                                        vs.

                         Daniel Junior, 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.

      Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken,
Assistant Attorney General, for respondent The State of Florida.


Before SUAREZ, C.J., and EMAS and LOGUE, JJ.

      EMAS, J.
      Travis White files this petition for writ of habeas corpus, following the trial

court’s entry of a judgment of direct criminal contempt, sentencing White to seven

days in jail. We grant the petition.

      The cause pending below is a dependency proceeding involving White’s

son, T.D. White is seeking custody of his son and, during a hearing on April 25,

2017, the trial court ordered White to submit to a drug test1 and then to return to

court. White left the courtroom and the court’s bailiff instructed White where to

go for the court-ordered drug test. White did not return to the courtroom, and it

was later discovered that White did not submit to the drug test.        The trial court

issued an order directing White to appear in court two days later (on April 27,

2017) and show cause why he should not be held in direct criminal contempt for

failing to submit to the court-ordered drug test and for failing to return to court.

      At the April 27 final hearing, the trial court appointed counsel for White.

Counsel requested additional time to investigate and prepare a defense for his

newly-appointed client. The trial court denied this request and proceeded to a final

hearing, after which the trial court adjudged White guilty of direct criminal

contempt, took him into custody, and sentenced him to seven days in the Miami-

Dade County jail.2

1 See Fla. R. Juv. P. 8.250(b) (providing trial court with authority, under certain
circumstances, to order drug testing of a person requesting custody of a child).
2 White filed a motion requesting the trial court stay the judgment and sentence to

permit White the opportunity to seek appellate review. The trial court denied that

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      White contends that the contempt proceedings below were improperly

prosecuted as a direct criminal contempt rather than an indirect criminal contempt.

This is a significant distinction, as a defendant subject to indirect criminal

contempt proceedings is accorded a panoply of procedural and substantive due

process safeguards not afforded to a direct criminal contemnor. See Fla. R. Crim.

P. 3.840(a)-(g) (providing, inter alia, that an indirect criminal contempt proceeding

requires: the issuance of a written order to show cause stating the essential facts

constituting the criminal contempt; the right to be represented by counsel; a

reasonable time for preparation of a defense after service of the show cause order;

an arraignment on the charge; an opportunity to seek a statement of particulars or

file motions and an answer to the show cause order; a formal final hearing on the

charge; the right to compulsory process for the attendance of witnesses at that

hearing; and the right to testify in his or her own defense). By contrast, a direct

criminal contempt, which involves conduct occurring “in the actual presence of the

court,” see Fla. R. Crim. P. 3.830, “may be punished summarily.” Id.3

motion, and White filed the instant petition as well as a motion for review of the
order denying stay. We issued a temporary stay of the judgment and sentence, and
ordered White’s immediate release from custody, pending disposition of the instant
petition.
3 Direct criminal contempt is restricted to conduct that occurs in the presence of the

court, constitutes an affront to the court’s authority, disrupts an ongoing
proceeding, and requires immediate action by the trial court to vindicate its
authority. State v. Diaz de la Portilla, 177 So. 3d 965, 973 (Fla. 2015). Treating
the conduct alleged in the instant case as a direct criminal contempt “does not
fulfill the purpose of this narrow form of contempt.” Id.

                                          3
      The instant case manifestly required that any contempt proceedings be

prosecuted as an indirect, rather than a direct, criminal contempt. The Florida

Supreme Court, in Plank v. State, 190 So. 3d 594, 606 (Fla. 2016), recently

reaffirmed the principle established by the United States Supreme Court in In re

Oliver, 333 U.S. 257 (1948):

      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.” Oliver, 333 U.S. at 275, 68 S.Ct. 499. If the
      judge needs to rely on statements and testimony from others regarding
      their knowledge about the contemptuous acts, the misconduct is no
      longer considered direct criminal contempt because additional
      testimony or explanation is necessary. Id. at 275–76, 68 S.Ct. 499. As
      the Supreme Court has stressed, “the judge must have personal
      knowledge of [the misconduct] acquired by his own observation of the
      contemptuous conduct.” Id. at 275, 68 S.Ct. 499. “[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.” Id.

      Commendably, the State concedes that the trial court erred in prosecuting

this matter as a direct, rather than an indirect, criminal contempt.4 We agree, and

4 The State nevertheless contends that the trial court’s error was harmless, positing
that the trial court afforded White all of the protections mandated for an indirect
criminal contempt. We reject this contention, as White’s counsel was appointed
just minutes before commencement of the final hearing (and the final hearing was
held just two days after the show cause order was issued). White’s newly-
appointed counsel, who was not present at the earlier hearing when the alleged
conduct occurred, requested additional time to investigate and prepare a defense,
including an opportunity to review the audio recording of that earlier hearing and
speak with potential witnesses; and to investigate White’s mental health status and
gather any potential mitigating evidence. The trial court denied this request. We

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accordingly grant the petition, vacate the judgment of direct criminal contempt,

and vacate the sentence imposed upon that judgment. We remand this cause to the

trial court for further proceedings, if appropriate,5 as an indirect criminal contempt.




conclude that White was not afforded “a reasonable time. . . for preparation of the
defense after service of the order on the defendant.” Fla. R. Crim. P. 3.840(a). See
Gratz v. State, 84 So. 3d 1219 (Fla. 3d DCA 2012); Goral v. State, 553 So. 2d
1282 (Fla. 3d DCA 1989); Korn v. Korn, 180 So. 3d 1122 (Fla. 4th DCA 2015);
Russ v. State, 622 So. 2d 501 (Fla. 5th DCA 1993).
5 We note that, by the time this court issued its temporary stay and ordered White’s

immediate release, he had already spent two days in jail.

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