         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                              NOT FINAL UNTIL TIME EXPIRES TO
                                              FILE MOTION FOR REHEARING AND
                                              DISPOSITION THEREOF IF FILED


M.J., A CHILD,

              Appellant,

 v.                                                  Case No. 5D15-3307

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed October 14, 2016

Appeal from the Circuit Court
for Brevard County,
Nancy Maloney, Judge.

James S. Purdy, Public Defender, and
Robert J. Pearce III, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Deborah A. Cheesman,
Assistant Attorney General, Daytona
Beach, for Appellee.


BERGER, J.,

      M.J., a juvenile, appeals the trial court’s order finding him in direct criminal

contempt and sentencing him to serve three days in secure detention for using his cell

phone to photograph or film the proceedings in violation of courtroom policy. Because
the evidence was insufficient to prove beyond a reasonable doubt that M.J. was filming

or taking pictures in the courtroom, we reverse.

       Direct criminal contempt is governed by Florida Rule of Criminal Procedure 3.830

and, when a juvenile is the contemnor, Florida Rule of Juvenile Procedure 8.150. The

rules permit the trial court to summarily punish a defendant for direct criminal contempt if

the conduct at issue was actually committed in the presence of the court. McRoy v. State,

31 So. 3d 273, 274 (Fla. 5th DCA 2010). "The purpose of criminal contempt is ‘to punish

assaults or aspersions upon the authority and dignity of a court or judge’, not to avenge

personal affronts." Smith v. State, 954 So. 2d 1191, 1194 (Fla. 3d DCA 2007) (quoting

Krueger v. State, 351 So. 2d 47, 49 (Fla. 3d DCA 1977)). Direct criminal contempt

requires proof beyond a reasonable doubt of "a willful, intentional, or substantial

interference and/or interruption of the orderly conduct of the court's business." Berman

v. State, 751 So. 2d 612, 614 (Fla. 4th DCA 1999); accord Davila v. State, 100 So. 3d

262, 264 (Fla. 3d DCA 2012) ("The provocation must never be slight, doubtful, or of

shifting interpretations." (quoting Schenck v. State, 645 So. 2d 71, 74 (Fla. 4th DCA

1994))).

       Furthermore, "[w]hen a finding of contempt is based upon a violation of a court

order, that order must be one which clearly and definitely makes the person aware of its

command." Smith, 954 So. 2d at 1194 (citing Barnes v. State, 588 So. 2d 1076, 1077

(Fla. 4th DCA 1991)). There must be proof beyond a reasonable doubt that (1) the

contemnor had notice of the order, (2) the order was directed at the contemnor, and (3)

the contemnor unequivocally and intentionally disobeyed the order or acted in gross

dereliction of the order to such an extent that intent can be presumed. § 38.23, Fla. Stat.




                                             2
(2015); Smith, 954 So. 2d at 1194 (citing Barnes, 588 So. 2d at 1194); Knorr v. Knorr,

751 So. 2d 64, 65 (Fla. 2d DCA 1999) (citing White v. State, 592 So. 2d 1184 (Fla. 5th

DCA 1992)).

       Before adjudicating the defendant guilty of contempt, the court must inform the

defendant of the accusation, inquire whether the defendant can show cause as to why he

or she should not be held in contempt, and give the defendant the opportunity to present

evidence of excusing or mitigating circumstances. Fla. R. Crim. P. 3.830; Fla. R. Juv. P.

8.150; A.W. v. State, 137 So. 3d 521, 523 (Fla. 4th DCA 2014). "The rules of criminal

contempt must be strictly followed so as to protect the due process rights of the

defendant." State v. Diaz de la Portilla, 177 So. 3d 965, 973 (Fla. 2015) (citing Pugliese

v. Pugliese, 347 So. 2d 422, 426 (Fla. 1977)). Here, the trial court accused M.J. of filming

in the courtroom in violation of the court’s rules. There were no other accusations

concerning his conduct.1

       At the hearing on the order to show cause, testimony from the courtroom bailiffs

established that, during court proceedings in his brother's juvenile delinquency case, M.J.

raised his phone to chin level with the camera facing the judge and lowered it only when

directed to do so by one of the bailiffs. Then the bailiff ordered M.J. to leave the

courtroom, and he complied. While the bailiffs testified that an announcement on the

court's policy barring cell phone usage in the courtroom was made before every hearing,

no one testified whether M.J.’s cell phone was on or whether it was actually used to take




       1 The State's allegations, in its brief, of additional contemptuous conduct by M.J.
cannot support the final judgment. M.J. was not informed of these allegations by the trial
court, and hence, he could not be held in contempt for them. Fla. R. Crim. P. 3.830; Fla.
R. Juv. P. 8.150.


                                             3
pictures or record video. Furthermore, no one chose to confiscate or otherwise examine

the phone for proof. M.J. admitted to raising his cell phone, but denied taking pictures or

video. He claimed he had a video on his cell phone regarding his brother’s case and was

attempting to get the judge’s attention so he could show it to her.

       While M.J.’s behavior was perhaps inappropriate, the evidence presented in this

case did not meet the standard necessary for a finding of direct criminal contempt. See

T.J.L. v. State, 139 So. 3d 503, 505 (Fla. 1st DCA 2014); McRoy, 31 So. 3d at 274. On

the record before us, there is no proof beyond a reasonable doubt that M.J. intended to

disobey the court’s order by filming the proceedings.2 Accordingly, we reverse the finding

of direct criminal contempt and remand with directions to vacate the judgment.

       REVERSED and REMANDED.

ORFINGER, J., and CRAGGS, A.M., Associate Judge, concur.




       2
      It is undisputed that at the time the announcement regarding cell phone usage
was made, M.J. was sitting outside the courtroom listening to music in his headphones.



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