         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs October 1, 2002

                STATE OF TENNESSEE v. KEVIN LEE PENNELL

                Direct Appeal from the Criminal Court for Davidson County
                         No. 2000-T-515    Steve R. Dozier, Judge



                     No. M2001-01863-CCA-R3-CD - Filed April 28, 2003



                                    DISSENTING OPINION


       I respectfully dissent from the majority’s holding that the Defendant’s conviction for criminal
contempt of court should be affirmed. While I agree that the trial court did have the authority to
suspend the Defendant’s driver’s license, I do not believe that the Defendant was sufficiently placed
on notice that his conduct of driving a car could result in his being held in contempt.

       Courts are granted contempt power by statute. “For the effectual exercise of its powers,
every court is vested with the power to punish for contempt, as provided for in this code.” Tenn.
Code Ann. § 16-1-103. Tennessee Code Annotated section 29-9-102 defines the limits of courts’
contempt power:

       The power of the several courts to issue attachments, and inflict punishments for
       contempts of court, shall not be construed to extend to any except the following
       cases:
       (1) The willful misbehavior of any person in the presence of the court, or so near
       thereto as to obstruct the administration of justice;
       (2) The willful misbehavior of any of the officers of such courts, in their official
       transactions;
       (3) The willful disobedience or resistance of any officer of the such courts, party,
       juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or
       command of such courts;
       (4) Abuse of, or unlawful interference with, the process or proceedings of the court;
       (5) Willfully conversing with jurors in relation to the merits of the cause in the trial
       of which they are engaged, or otherwise tampering with them; or
       (6) Any other act or omission declared a contempt by law.
A court’s contempt power serves to maintain the integrity of its orders and vindicate its authority.
See State v. Winningham, 958 S.W.2d 740, 746 (Tenn.1997).

        Contempts are either civil or criminal. Civil contempt is a remedial measure meant to serve
a private purpose and is not meant to deter offenses against society. See Higgins v. Lewis, 23
Tenn.App. 648, 660, 137 S.W.2d 308, 316 (1939) (quoting McCrone v. United States, 307 U.S. 61,
64, 59 S.Ct. 685, 686, 83 L.Ed. 1108, 1110 (1939)). On the other hand, criminal contempt is
“punitive in character, and the proceeding is to vindicate the authority of the law and the court as an
organ of society.” Shiflet v. State, 217 Tenn. 690, 693, 400 S.W.2d 542, 543 (1966). Contempt can
also be categorized as direct or indirect. Our supreme court has stated that “[d]irect contempt is
based upon acts committed in the presence of the court, and may be punished summarily.” Black
v. Blount, 938 S.W.2d 394, 398 (Tenn.1996). On the other hand, “[i]ndirect [or constructive]
contempt is based upon acts not committed in the presence of the court, and may be punished only
after the accused has been given notice and an opportunity to respond to the charges at a hearing.”
Id.

       The Defendant in the instant case was accused of an indirect, criminal contempt because his
driving of a vehicle occurred outside the presence of the court and prevented the court from
administering the law. Rule 42(b) of the Tennessee Rules of Criminal Procedure governs the
prosecutions for indirect, criminal contempt:

       A criminal contempt except as provided in subdivision (a) of this rule [regarding
       summary disposition of direct contempt] shall be prosecuted on notice. The notice
       shall state the time and place of hearing, allowing a reasonable time for the
       preparation of the defense, and shall state the essential facts constituting the criminal
       contempt charged and describe it as such. The notice shall be given orally by the
       judge in open court in the presence of the defendant or, on application of the district
       attorney general or of an attorney appointed by the court for that purpose, by an order
       to show cause or an order of arrest. The defendant is entitled to admission to bail as
       provided in these rules. If the contempt charged involves disrespect to or criticism
       of a judge, that judge is disqualified from presiding at the hearing except with the
       defendant’s consent. Upon a verdict of finding of guilt the court shall enter an order
       fixing the punishment.

The defendant’s guilt in a criminal contempt case “must be established by proof beyond a reasonable
doubt.” Black, 938 S.W.2d at 398. In Black, our supreme court held that contempt is not limited
to “conduct which actually interferes with a pending proceeding” but may extend to conduct
following the conclusion of a proceeding as well. Id. at 401. The court concluded that “criminal
contempt of court which obstructs the administration of justice includes all willful misconduct which
embarrasses, hinders, or obstructs a court in its administration of justice or derogates the court’s
authority or dignity, thereby bringing the administration of law into disrepute.” Id.




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        The Defendant in this case was found to have violated the implied consent law. On the
judgment form, the trial judge wrote, “Defendant is found to have violated the implied consent law
with a loss of license for one year.” The State argues in its brief that the trial court instructed the
Defendant orally from the bench that he was not to drive, and this was the order that the Defendant
violated by driving. The record does not contain a transcript of the hearing at which this order was
allegedly given. However, assuming that this instruction was given, I do not believe that it provided
the Defendant with adequate notice that, if he drove a car, he could be held in criminal contempt of
court in addition to being arrested and prosecuted for driving without a license.

         Although there is no Tennessee law which directly addresses this issue, courts of other states
have done so. The Texas Supreme Court has stated that a person “cannot be held in constructive
contempt of court for actions taken prior to the time that the court’s order is reduced to writing.” Ex
parte Chambers, 898 S.W.2d 257, 262 (Tex. 1995) (citing Ex parte Price, 741 S.W.2d 366 (Tex.
1987)). To hold a person in contempt for disobeying a court order, the order “must spell out the
details of compliance in clear, specific and unambiguous terms so that such person will readily know
exactly what duties or obligations are imposed upon him.” Ex parte Slavin, 412 S.W.2d 43, 44 (Tex.
1967). An oral order does not comply with the requirements of Slavin in cases of indirect contempt.
See Ex parte Mikeska, 608 S.W.2d 290, 291 (Tex. Civ. App. 1980); Ex parte Grothe, 570 S.W.2d
183, 184 (Tex. Civ. App. 1978). Therefore, “[u]nder Price and Chambers, violations of an oral order
are not subject to constructive contempt punishment.” Ex parte Waldrep, 932 S.W.2d 739, 741 (Tex.
App. 1996).

        Likewise, the Supreme Court of South Dakota has held that an oral order cannot serve as the
basis for a finding of constructive contempt. See Karras v. Gannon, 345 N.W.2d 854, 859 (S.D.
1984). The court stated that when “it is possible to enter and serve an order, subsequent
noncompliance with an oral order should rarely, if ever, constitute grounds for a contempt
proceeding.” Id. at 858. The Appellate Court of Illinois expressed a similar sentiment by stating that
“[c]ourts must use extreme caution in holding an individual in indirect civil contempt of court based
upon the violation of a court order not found in the court record.” First Midwest Bank/Danville v.
Hoagland, 613 N.E.2d 277, 284 (Ill. App. Ct. 1993). Finally, the United States Supreme Court
stated,

       That a court of record, whose proceedings can be proved by the record alone, should,
       at a subsequent term, determine that an order was made at a previous term, of which
       no trace could be found on its records…is a proceeding of so much delicacy and
       danger, which is liable to so much abuse; that some of us question the existence of
       the power.

Bank of Hamilton v. Lessee of Dudley, 27 U.S. 492, 522, 7 L.Ed. 496, 506 (1829).

       In the instant case, I am unpersuaded that the oral order of the court is sufficient to support
the Defendant’s conviction for indirect, criminal contempt of court. The Defendant did not receive



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adequate notice or warning that, by driving an automobile, he would render himself criminally liable
for contempt of court.

       Therefore, I would reverse and dismiss the Defendant’s conviction for contempt of court.




                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




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