                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

ALEX DIAZ DE LA PORTILLA,             NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D11-5126

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed July 14, 2014.

An appeal from the Circuit Court for Leon County.
Frank E. Sheffield, Judge.

Miguel Diaz De La Portilla of Becker & Poliakoff, P.A., Coral Gables, and Arthur
J. Berger, Miami, for Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney
General, Tallahassee, for Appellee.



MAKAR, J.

      In this marital dissolution case, what initially was a spat over the family

dogs spiraled into a direct criminal contempt order that is now the subject of this

appeal. During the course of the proceeding, which the couple has now settled, the

former husband, Alex Diaz de la Portilla, was ordered (by the first of two trial

judges in this case) to turn over one of the couple’s two dogs by February 16,
2011. He failed to do so, resulting in his now-former wife filing a motion for

contempt, which was set for hearing by the trial judge who issued a show cause

order compelling Diaz de la Portilla to appear. Due to the first trial judge’s recusal,

the scheduled hearing was cancelled, but the former wife renewed her motion after

a successor judge was assigned. At the July 20, 2011 hearing on the renewed

motion before the successor judge, Diaz de la Portilla did not appear, causing the

trial judge to pronounce he was holding Diaz de la Portilla in civil contempt for

failing to comply with the prior judge’s order compelling transfer of the dog. Diaz

de la Portilla was given until Friday, July 22nd, to comply with the dog-transfer

order or be committed to the Leon County jail for thirty days. The trial court’s

findings and rulings were later memorialized in a written order, which Diaz de la

Portilla appealed, reiterating his argument that a trial court cannot seek to enforce

an interim equitable distribution of personal property (here, the dogs) by contempt

order.

         Despite the trial court’s order, the dog was not transferred, causing another

contempt motion to be filed with notice served on Diaz de la Portilla’s counsel. At

the August 23, 2011 hearing on the motion, 1 only Diaz de la Portilla’s counsel was


1
  The original transcript of this hearing, which was filed in the trial court by Diaz
de la Portilla’s counsel on July 11, 2012, was transmitted to this Court in a
supplemental record on August 16, 2012. At some point, either prior to the filing of
the original transcript in the trial court or between that filing and transmittal of the
supplemental record to this Court, profanity was handwritten on the original
                                            2
present, offering no explanation for his client’s absence. As it did the first time, the

trial court again verbally pronounced Diaz de la Portilla in civil contempt, not only

for not appearing pursuant to court order but also for failing to comply with the

dog-transfer order. The trial court sentenced Diaz de la Portilla to five months and

twenty-nine days in jail, and further found him in direct criminal contempt,

ordering the same sentence to run consecutively with the civil contempt sentence.

The trial court explained:

      At this juncture in this case it is my opinion that it is no longer
      practical, no longer possible for me to coerce compliance because
      your client is not going to do it. He is going to absent himself; he is
      going to continue to vilify his wife; he is going to continue to thumb
      his nose at this Court and to challenge my authority to enforce not
      only my Orders but the Orders of [the predecessor judge.] . . . Based
      upon the sworn Motion and the sworn testimony today I find him to
      be in civil contempt for not appearing today and not giving the dog to
      her as per [the predecessor judge’s] Order. He is hereby sentenced to
      serve five months and 29 days for that contempt. In addition, based
      upon the fact that I have ordered him to appear and he has not
      appeared here today I find him in direct criminal contempt. He is also
      ordered to spend five months and 29 days for direct criminal
      contempt. And those two contempts are to run consecutive to one
      another. So I will prepare a written Order and written findings as to
      my findings today. And he has absolutely one hundred percent right to
      purge himself of this contempt by following the act that he has been
      ordered to follow since February 18th and that is give her one of the
      dogs during the pendency of these proceedings.



transcript. By an April 22, 2014 show cause order, and a response thereto, we have
been unable to resolve who is responsible for the inflammatory marginalia, but
direct the trial court—which is in a better position to make further inquiry—to
pursue the matter on remand.
                                        3
Two days later, the trial court entered a written order, finding that: the court had

ordered Diaz de la Portilla to appear by serving notice to Diaz de la Portilla’s

counsel (because the trial judge did not know the location of Diaz de la Portilla);

Diaz de la Portilla’s counsel did not offer a reason for why his client did not

appear; the court could not question Diaz de la Portilla due to his failure to appear;

and Diaz de la Portilla’s actions “were wilful [sic] contempt that occurred beyond a

reasonable doubt directly in the presence of the Court and warranted appropriate

sanctions.”

      Appeals were filed in which Diaz de la Portilla challenged the trial court’s

orders of civil and criminal contempt, which this Court stayed and consolidated for

review and disposition. Resolution of the appeals has been delayed due to various

procedural matters and two intervening developments. First, the former spouses

entered a settlement agreement in December 2011, which included Diaz de la

Portilla obtaining both dogs. As a part of the settlement, the parties agreed to

recommend to the trial judge that all civil and criminal contempt orders be vacated,

which the trial judge agreed to do except for the criminal contempt order because it

was pending on appeal in this Court. As a result, Diaz de la Portilla dismissed the

consolidated appeals relating to the civil contempt orders, asking this Court to

relinquish jurisdiction to the trial judge to consider the parties’ recommendation to

dismiss the criminal contempt order, which this Court granted.

                                          4
      In its May 12, 2012 order, the trial court, recounting the lengthy history that

led to the criminal contempt order, refused to vacate the order, which—according

to the trial court—was based on Diaz de la Portilla’s “concerted efforts” to

interfere with the court’s resolution of the case, his willful failures to comply with

court orders and appear in court, his “conscious attempts” to prevent judicial

resolution of the case, and “his utter disdain for the Courts (and all three Judges

assigned to this case), coupled with his public pronouncements that he would not

comply with any Orders and had no respect for the Court’s decisions.” Because the

trial court denied the parties’ request to vacate the criminal contempt order, the

appeal currently before us, therefore, relates only to the order holding Diaz de la

Portilla in direct criminal contempt.

      Next, the matter returned to this Court but was delayed due to requested

briefing extensions, an amended initial brief being filed in December 2012. In light

of the case being “in the nature of a contempt proceeding solely for the purpose of

vindicating the authority and dignity” of the trial court, it was determined that the

State of Florida was an indispensable party. See In re Local Lodge No. 1248 of

Int’l Ass’n of Machinists, 131 So. 2d 29, 35 (Fla. 1st DCA 1961). The case was

restyled to include the State as the appellee, and the Office of the Attorney General

was asked to file an answer brief, which it did in October 2013. A reply brief

followed in November 2013, rendering this appeal ready for disposition.

                                          5
                                          II.

      On appeal, Diaz de la Portilla asserts the trial court erred in holding him in

direct criminal contempt because he was not served with the order to show cause

nor was he personally subpoenaed to appear, thereby denying him due process. He

claims it was fundamental error to hold him in direct criminal contempt without his

presence or a finding that his non-appearance was intentional. He also argues that

the record evidence is insufficient to establish a basis for direct criminal contempt

arising from his non-appearance, and that he did nothing to obstruct the trial

court’s ability to hold the hearing because, in fact, the hearing was held.

      The State responds by distinguishing between direct and indirect criminal

contempt, noting that the former requires that the contemptuous act must occur in

the immediate presence of the court, while the latter proceeding involves an act

committed out of the presence of the court. It notes that the trial court’s order is

based on caselaw that is binding in this District, holding that a failure to appear can

be considered direct criminal contempt, even though physical presence before the

trial judge is lacking. See Speer v. State, 742 So. 2d 373, 373 (Fla. 1st DCA 1999)

(holding that the “failure to appear in court pursuant to a court order can constitute

direct criminal contempt.”). Most districts hold similarly. See, e.g., Bouie v. State,

784 So. 2d 521, 522 (Fla. 4th DCA 2001) (failure to appear in court is punishable

by direct criminal contempt); Woods v. State, 600 So. 2d 27, 29 (Fla. 4th DCA

                                          6
1992) (failure to appear at a sentencing hearing can be direct criminal contempt);

Porter v. Williams, 392 So. 2d 59, 60 (Fla. 5th DCA 1981) (“Non-appearance

pursuant to an order of the court is normally considered a direct criminal contempt

since it is committed in the immediate view and presence of the court.”); but cf.

Hayes v. State, 592 So. 2d 327, 329 (Fla. 4th DCA 1992) (“It is difficult, however,

for us to understand how Hayes’s conduct can be considered to have been

committed in the ‘actual presence of the court’, when it was Hayes’s absence from

the presence of the court that caused the judge to complain.”).

      As the State points out, this line of cases originates from the Florida

Supreme Court’s two paragraph per curiam decision in Aron v. Huttoe, 265 So. 2d

699 (Fla. 1972), which affirmed the Third District’s holding that a trial court may

hold a non-appearing witness in direct criminal contempt due to the witness’s

failure to appear, without justification, pursuant to a properly issued subpoena. The

witness at issue, Dr. Aron, failed to appear at trial, causing the trial judge to

immediately have him arrested and brought to court for questioning. Aron v.

Huttoe, 258 So. 2d 272, 272 (Fla. 3d DCA 1972). Dr. Aron admitted he had been

subpoenaed, but “got mixed up” and returned to his medical office after appearing

in another case that morning in the same courthouse. Id. at 274. The trial court

found this explanation inadequate, summarily holding the doctor in direct criminal

contempt and fining him $300. Id. at 273. On appeal, Dr. Aron claimed due

                                         7
process violations, namely a lack of written notice of his challenged conduct and a

fair opportunity to defend himself (he did not have a lawyer). Id. On these facts,

the Third District upheld the contempt order, finding it to be “rule contempt” for

which the summary procedures used were adequate. Id. (citing Rule 1.410(e),

Florida Rules of Civil Procedure, which allows for contempt for non-compliance

with a subpoena).2 The court also held that the failure to appear pursuant to a

subpoena for trial is best characterized as a direct criminal contempt, citing Rule

1.830, now renumbered, which stated (and still states) that “[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.” Fla. R. Crim. P. 3.830.

       The Third District, noting that Dr. Aron had presented a “logical argument”

that his contemptuous conduct “was not ‘committed in the actual presence of the

court,’” certified its “opinion and decision to the Supreme Court of Florida as one

passing upon a question of great public importance.” 258 So. 2d at 274 (internal

citations omitted). As recited by the Florida Supreme Court, the question certified

was:

       Whether a person who fails to appear at trial after having been
       properly subpoenaed may be brought into court during the trial and
       summarily held in contempt after failing to prove an adequate excuse.

2
  The cited rule is unchanged, but has been renumbered. See Fla. R. Civ. P.
1.410(f) (2014) (“(f) Contempt. Failure by any person without adequate excuse to
obey a subpoena served upon that person may be deemed a contempt of the court
from which the subpoena issued.”)
                                        8
265 So. 2d at 700. Explaining it had heard oral argument and reviewed the briefs

and record, the Florida Supreme Court’s abbreviated decision simply noted the

certified question and held that “the District Court of Appeal has correctly decided

the cause and its decision is adopted as the ruling of this Court.” Id.

      This wholesale adoption of the Third District’s opinion, without elaboration

and without directly answering the certified question, has created forty years of

uncertainty. 3 Although some courts, including this Court in Speer, have cited Aron

for the broad proposition that a failure to appear is a basis for direct criminal

contempt, others have distinguished it or deemed it in tension with, or disavowed

by, subsequent supreme court cases. See, e.g., Kelley v. Rice, 800 So. 2d 247, 253

(Fla. 2d DCA 2001) (interpreting decision in Pugliese v. Pugliese, 347 So. 2d 422

(Fla. 1977) as a partial repudiation of Aron by concluding that “to the extent the

supreme court had adopted that dicta [in Aron], the court has since disavowed it.”);

Martinez v. State, 799 So. 2d 313, 315 (Fla. 2d DCA 2001) (noting the district

court conflict and the tension of Aron with the supreme court’s decision in Gidden

v. State, 613 So. 2d 457 (Fla. 1993)).



3
  “Needless to say, adopting lower court opinions is a less-than-ideal method to
establish law in a clear and straightforward way, which may explain why it is
rarely used.” Scott D. Makar, Browning v. Florida Hometown Democracy, Inc.: A
Case Study in Judicial Opinion Writing, 41 Stetson L. Rev. 477, 491 (2012).

                                           9
      Lacking a clear indication that the Florida Supreme Court has implicitly

repudiated Aron or its scope of application, we must remain steadfast to our

precedent in Speer. In doing so, we appreciate the State’s request that we undertake

clarifying this area of the law; it has done an admirable job of providing a well-

reasoned path to follow, that being to establish as a “better practice” that trial

courts prospectively be guided by two guideposts: (a) that “the failure to appear in

court be treated as an indirect criminal contempt rather than a direct criminal

contempt” and (b) that a criminal contempt proceeding be used that is “totally

separate from the civil proceeding to ensure that the criminal contempt proceeding

is handled as a criminal matter as required by Rule 3.840.” The merit of recasting

a party’s non-appearance as an indirect criminal contempt, however, is for our

supreme court to address, and we certify a question below to enable them to do so.

We pass upon the question by continuing to read Aron as holding that a failure to

appear in court is punishable by direct criminal contempt under Florida Rule of

Criminal Procedure 3.830, which may be adjudged concurrently in a civil

proceeding. We find merit in, but reject due to Speer, the view that a failure to

appear in court ought to be dealt with as and punishable by indirect criminal

contempt under Rule 3.840.

      Turning back to Speer and its application in this case, we first hold that the

trial judge was entitled to apply principles of direct criminal contempt. The trial

                                        10
judge was exceptionally thorough in his detailed orders explaining the basis for

why direct criminal contempt was appropriate given the many ways he perceived

that Diaz de la Portilla had burdened and delayed the orderly administration of

justice in what ought to have been a relatively simple dissolution matter. That said,

a key missing element is whether Diaz de la Portilla was notified that he was

required to attend but failed to do so without excuse. In Speer, this Court reversed

the order of contempt “because nothing in the record indicates that Speer had been

ordered to appear in court.” 742 So. 2d at 373. Here, no question exists that Diaz

de la Portilla had been ordered to appear in the trial court; but nothing shows that

he was notified personally of the trial court’s order and, if so, his reasons for not

appearing, which creates a due process problem. See O’Neal v. State, 501 So. 2d

98, 100 (Fla. 1st DCA 1987) (“[B]efore a party is adjudged in contempt of court,

he must be put on notice of what the consequences of his words or actions are

about to entail so that he may avert those consequences by explaining his

conduct.”).

      The State concedes this failure was error, but recommends that we remand

the case for a hearing “after giving [Diaz de la Portilla] proper notice and

allow[ing] the parties to present evidence to establish whether or not [Diaz de la

Portilla] knew he was required to attend the hearing and whether or not he

intentionally failed to appear at the hearing.” Indeed, some of our cases suggest

                                         11
that this type of recommendation—a reversal “without prejudice to the institution

of proper contempt proceedings”—can be an appropriate remedy where an error in

a contempt proceeding is shown. See, e.g., Garrett v. State, 876 So. 2d 24, 26 (Fla.

1st DCA 2004) (reversing contempt order because “appellant was neither informed

that under the rule he could present mitigating circumstances, nor given a separate

and distinct opportunity to present mitigating circumstances.”); Marshall v. State,

764 So. 2d 908, 908 (Fla. 1st DCA 2000) (reversing contempt order because trial

court “failed to inquire as to whether appellant had any cause to show why he

should not be adjudicated guilty of contempt and failed to give appellant an

opportunity to present excusing or mitigating evidence.”). Cases that Diaz de la

Portilla cites also suggest that remand without prejudice to further proceedings can

be appropriate. See, e.g., Maniatakos v. Hirsch, 106 So. 3d 953, 954 (Fla. 4th DCA

2013) (remanding “for further proceedings during which appellant may be given

the opportunity to show cause why he should not be adjudged guilty of contempt

and to present evidence of excusing or mitigating circumstances in compliance

with Rule 3.830.”); Anton v. Anton, 106 So. 3d 34, 35 (Fla. 3d DCA 2013)

(reversing an indirect contempt order “without prejudice” to further proceedings).

      But these cases differ from the situation here, which involves a claim of

evidentiary insufficiency. In response to the State’s recommendation, Diaz de la

Portilla—consistent with his argument that fundamental error occurred because

                                        12
insufficient evidence exists to support holding him in criminal contempt—says it

would violate the federal and state Double Jeopardy Clauses4 to subject him to

renewed contempt proceedings. Those clauses’ prohibition against successive

prosecutions doesn’t rule out a retrial of a defendant who successfully gets his

conviction overturned on appeal because of an error in the initial proceedings. See,

e.g, Gore v. State, 784 So. 2d 418 (Fla. 2001). But Diaz de la Portilla’s primary

point is not one based on mere error at trial; instead, it is founded upon the lack of

any evidence that he was notified of the order requiring him to appear. His point is

one of evidentiary insufficiency, which makes his criminal contempt conviction

fall more closely in line with those situations for which a successive prosecution is

prohibited. See United States v. Scott, 437 U.S. 82, 90-91 (1978) (“The successful

appeal of a judgment of conviction, on any ground other than the insufficiency of

the evidence to support the verdict . . . poses no bar to further prosecution on the

same charge.”) (emphasis added). Little doubt exists that the Double Jeopardy

Clauses apply to criminal contempt proceedings, see United States v. Dixon, 509

U.S. 688 (1993), and that they should prevent reinstitution of direct criminal

contempt proceedings in the present case in light of the State’s forthright

concession.


4
 U.S. Const. amend. V. (“[N]or shall any person be subject for the same offence to
be twice put in jeopardy of life or limb . . . .”); Art. I, § 9, Fla. Const. (“No person
shall . . . be twice put in jeopardy for the same offense[.]”).
                                            13
      This conclusion is borne out in the caselaw analyzing the interplay of

criminal contempt convictions and the Double Jeopardy Clauses. The United States

Supreme Court has held that the clauses apply when a criminal contempt

conviction “based on violation of a criminal law incorporated into a court order” is

followed by “a subsequent prosecution for the criminal offense” as in Dixon. 509

U.S. at 695. Similarly, the clauses also apply when a conviction for a violation of a

criminal law is followed by a “prosecution for contempt of court arising out of” the

same violation of law. See N.T. v. State, 682 So. 2d 688, 690 (Fla. 5th DCA 1996);

Hernandez v. State, 624 So. 2d 782, 783 (Fla. 2d DCA 1993) (“[S]uccessive

prosecution for indirect criminal contempt in this case violates the Double

Jeopardy Clause” if based on substantive offense underlying prior conviction); see

also Fierro v. State, 653 So. 2d 447, 448 (Fla. 1st DCA 1995) (noting that under

Hernandez the Double Jeopardy Clause “prohibits the subsequent prosecution for a

substantive offense that underlies a criminal contempt charge for which one has

been convicted. It also holds the converse, i.e., subsequent prosecution for criminal

contempt, the basis of which is a substantive offense for which a conviction has

been obtained, violates the Double Jeopardy Clause.”).

      Given this doctrinal symmetry in related contexts, it seems evident that a bar

on successive prosecution must also apply to prevent a second attempt at securing

a criminal contempt conviction where, as here, the original conviction was based

                                         14
on insufficient evidence; to hold otherwise would fall squarely in the crosshairs of

what the Double Jeopardy Clauses disallow post-Dixon. See, e.g., Lascaibar v.

Lascaibar, 773 So. 2d 1236 (Fla. 3d DCA 2000) (acquittal of husband on indirect

criminal contempt charge barred retrial under Dixon). As such, Diaz de la Portilla,

as a defendant in a criminal contempt proceeding, is thereby protected from

successive prosecution for direct criminal contempt under the Double Jeopardy

Clauses based on the evidentiary insufficiency in this case. In so holding, we in no

way condone a failure to appear as required by a court order; such conduct is

worthy of punishment via contempt, provided the requisite due process is shown.

      Finally, in light of the foregoing discussion about the uncertainty that exists

regarding Aron’s application in cases such as this one, we certify the following

question of great public importance:

      Whether a party who is ordered by a trial court to appear at a
      scheduled hearing, but fails to do so, may be found in direct criminal
      contempt under Florida Rules of Criminal Procedure 3.830; or
      whether such conduct should be addressed as indirect criminal
      contempt under Florida Rules of Criminal Procedure 3.840?

Should the supreme court choose to accept jurisdiction, we recommend that it also

consider the State’s suggestion that criminal contempt hearings be held separately

from the civil proceedings. In addition, our ruling that the Double Jeopardy

Clauses shield Diaz de la Portilla from retrial, is one upon which Florida’s courts

could use clearer guidance in light of the uncertainty that Dixon injected into

                                        15
contempt proceedings under pre-existing Florida legal principles. See Scott K.

Lippman, The Ramifications of U.S. v. Dixon in Florida, Fla. B.J., Feb. 1994, at

51, 53 (“[T]hat part of the Dixon decision holding that former jeopardy attaches to

criminal contempt proceedings will require a drastic overhaul in existing

jurisprudential thought on this matter by the courts of this state” because “Florida

courts have long clung” to the view that “criminal contempt proceedings are

simply exempt from double jeopardy analysis under the now-irrelevant notion that

contempt proceedings serve to vindicate different ‘interests’ than criminal laws.”).

      REVERSED and REMANDED; QUESTION CERTIFIED.

THOMAS and RAY, JJ., CONCUR.




                                         16
