          Supreme Court of Florida
                                  ____________

                                  No. SC15-711
                                  ____________


       IN RE: AMENDMENTS TO FLORIDA RULE OF JUVENILE
                     PROCEDURE 8.150.

                               [February 11, 2016]

PER CURIAM.

      This matter is before the Court for consideration of proposed amendments to

the Florida Rules of Juvenile Procedure. We have jurisdiction. See art. V, § 2(a),

Fla. Const.

                                BACKGROUND

      The Juvenile Court Rules Committee (Committee) filed an out-of-cycle

report proposing amendments to Rule of Juvenile Procedure 8.150 (Contempt).

The Committee states that the proposed amendments conform the rule to changes

to section 985.037, Florida Statutes, which addresses punishment for contempt of

court in delinquency proceedings, made by chapter 2014-162, Laws of Florida.

The proposed amendments also make additional substantive changes to the rule

beyond the scope of the statutory changes. The Committee and The Florida Bar
Board of Governors unanimously approved the proposals. Both the Committee

and the Court published the proposals for comment. No comments were received

by the Committee or filed with the Court. Upon consideration, we adopt the

amendments as proposed by the Committee and as described below.

                                  AMENDMENTS

      Florida Rule of Juvenile Procedure 8.150 governs contempt in juvenile

delinquency proceedings. New subdivision (a) (Contempt of Court): (1) provides

that the court may punish a child for contempt “for interfering with the court or

court administration, or for violating any order of the court”; (2) clarifies that a

child under the jurisdiction of the juvenile court may be subject to contempt “even

upon reaching the age of majority”; and (3) provides that a child who has been

sentenced to secure detention for contempt may have the placement reviewed by

motion of any party to the proceedings. Renumbered subdivision (b) (Direct

Contempt), previously subdivision (a), is amended to state that a child is entitled to

a hearing and appointment of counsel when accused of direct contempt. New

subdivision (c)(1) (Indirect Contempt; Legal Counsel) is added. This new

subdivision states that a child is entitled to counsel in an indirect contempt hearing

and that any waiver of counsel must comply with rule 8.165 (Providing Counsel to

Parties). The provisions of current subdivision (c)(5) (Disqualification of the

Judge), which addresses disqualification of the judge when the indirect contempt


                                          -2-
involves disrespect to or criticism of the judge, are relocated into renumbered

subdivision (c)(2) (Order to Show Cause). This subdivision is also amended to

require disqualification only when the child files a motion to disqualify, rather than

automatically. Renumbered subdivision (c)(3) (Motions; Answer) is amended to

clarify the list of options available to a child when answering an indirect contempt

charge, and also to delete the requirement for written answers. Renumbered

subdivision (c)(4) is retitled as “Detention Before the Hearing” and amended to

limit the detention of a child before the contempt hearing to situations in which the

court provides a written demonstrated belief that the child will fail to appear.

Renumbered subdivision (c)(5) is retitled “Hearing” and lists the child’s due

process rights in an indirect contempt hearing. Subdivision (c)(7) (Sentence) is

amended to require the court to consider all available and appropriate sentences,

including alternative sanctions as referenced in the statute. Grammatical and

stylistic amendments are also made to several of the subdivisions of the rule.

                                  CONCLUSION

      Accordingly, we amend Florida Rule of Juvenile Procedure 8.150 as

reflected in the appendix to this opinion. New language is indicated by

underscoring; deletions are indicated by struck-through type. The amendments

shall become effective immediately upon the release of this opinion.

      It is so ordered.


                                         -3-
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY,
JJ., concur.
CANADY, J., concurs in part and dissents in part with an opinion.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.

CANADY, J., concurring in part and dissenting in part.

      I concur with the rule changes adopted by the majority except for the

provision of new subsection (b) establishing in juvenile direct contempt cases “a

right to legal counsel and the right to have legal counsel appointed by the court if

the child is indigent.”

      This rule provision adopted by the majority is inconsistent with section

985.037(4), Florida Statutes (2015). The statute provides for legal counsel only in

connection with cases of indirect criminal contempt. See § 985.037(4)(b).

Moreover, the statute specifically provides that in cases of direct contempt, “the

court may impose an authorized sanction immediately”—which will not be

possible under this rule provision where the juvenile is not already represented by

counsel.

      No basis has been shown for this Court to adopt this procedural rule granting

a substantive right in derogation of a legislative enactment. I dissent from this

improper use of the Court’s procedural rulemaking authority.




                                         -4-
Original Proceeding – Florida Rules of Juvenile Procedure

Robert William Mason, Chair, Juvenile Court Rules Committee, Jacksonville,
Florida; Deborah Anne Schroth, Past Chair, Juvenile Court Rules Committee,
Jacksonville, Florida; John F. Harkness, Jr., Executive Director, and Gregory A.
Zhelesnik, Bar Staff Liaison, The Florida Bar, Tallahassee, Florida,

      for Petitioner




                                       -5-
                                    APPENDIX

RULE 8.150.        CONTEMPT

       (a) Contempt of Court. The court may punish any child for contempt
under this rule for interfering with the court or court administration, or for
violating any order of the court. A child under the jurisdiction of the juvenile court
may be subject to contempt under this rule even upon reaching the age of majority.
If the child is found in contempt and sentenced to secure detention, on motion by
any party the court must review the placement of the child to determine whether it
is appropriate for the child to remain detained.

       (ab) Direct Contempt. After a hearing, a contempt may be punished
summarilyimmediately if the court saw or heard the conduct constituting the
contempt that was committed in the actual presence of the court. The judgment of
guilt of contempt shall include a recital of those facts upon which the adjudication
of guilt is basedThe child has a right to legal counsel and the right to have legal
counsel appointed by the court if the child is indigent. The court must inform the
child as to the basis for the contempt by reciting the facts on which the contempt is
based. Prior toBefore the adjudication of guilt the court shallmust inform the
person accused of the accusation and inquire as to whether there is any cause to
show why he or shethe child should not be adjudged guilty of contempt by the
court and sentenced therefor. The accusedchild shallmust be given the opportunity
to present evidence of excusing or mitigating circumstances. The judgment
shallmust be signed by the court and entered of record. Sentence shallmust be
pronounced in open court.

      (bc) Indirect Contempt. An indirect contempt may be prosecuted in the
following manner:

              (1) Legal Counsel. Counsel must be appointed for all contempt
hearings if the child qualifies for such appointment, or the child has the right to
retain counsel, unless the child waives counsel in writing as required by rule 8.165.

              (12) Order to Show Cause. The court on its own motion or upoOn
affidavit of any person having personal knowledge of the facts, the court may issue
and sign an order directed to the one accused of contempt, statingto show cause.
The order must state the essential facts constituting the contempt charged and
requiringrequire the accusedchild to appear before the court to show cause why he
or shethe child should not be held in contempt of court. If the contempt charged
involves disrespect to or criticism of a judge, on motion by the child, the judge

                                         -6-
must be disqualified by the chief judge of the circuit. The order shallmust specify
the time and place of the hearing, with a reasonable time allowed for the
preparation of a defense after service of the order on the one accusedchild. It
shallmust be served in the same manner as a summons. Nothing herein shall be
construed to prevent the one accused of contemptchild from waiving the service of
process.

             (23) Motions; Answer. The accused, personally or by counsel, child
may move to dismiss the order to show cause, move for a statement of particulars,
admit to the offense, or answer such order by way of explanation or defense. All
motions and the answers shall be in writing unless specified otherwise by the court.
The accused’s omission to file a motion or answer shall not be deemed an
admission of guilt of the contempt chargedenter a denial and request a hearing.

              (34) Order of Arrest; BailDetention Before the Hearing. The
court may issue an order of arrest of the one accused of contemptonly detain the
child before the contempt hearing solely on the contempt proceeding if the court
hasprovides clear and convincing reasons in writing to believedemonstrating the
court’s belief that the accusedchild will notfail to appear in response to the order to
show cause. The accused shall be admitted to bail in the manner provided by law
in criminal cases.

              (45) Arraignment; Hearing. The accused may be arraigned at the
hearing, or prior thereto upon request. A hearing to determine the guilt or
innocence of the accused shall follow a plea of not guilty. The court may conduct a
hearing without assistance of counsel or may be assisted by the state attorney or by
an attorney appointed for that purpose. The accused is entitled to be represented by
counsel, have compulsory process for the attendance of witnesses, and may testify
in his or her own defense. All issues of law and fact shall be determined the
court.The judge may conduct a hearing without assistance of counsel or may be
assisted in the prosecution of the contempt by the state attorney or by an attorney
appointed for that purpose. At the hearing, the child has the following rights:

                    (A)   The right to be represented by legal counsel.

                    (B)   The right to testify in the child’s own defense.

                    (C)   The right to confront witnesses.

                    (D)   The right to subpoena and present witnesses.


                                         -7-
                    (E)   The right to have the hearing recorded and a copy of such
recording.

                    (F)   The right to have a transcript of the proceeding.

                    (G)   The right to appeal.

             (5) Disqualification of the Judge. If the contempt charged
involves disrespect to or criticism of a judge, the judge shall be disqualified by the
chief judge of the circuit.

              (6) Verdict; Judgment. At the conclusion of the hearing the court
shallmust sign and enter of record a judgment of guilty or not guilty. There should
be included in a judgment of guilty a recital of the facts constituting the contempt
of which the accused has been found and adjudicated guiltyIf the court finds the
child guilty, the judgment should include a recital of the facts that constituted the
contempt.

             (7) Sentence. Prior toBefore the pronouncement of sentence the
court shallmust inform the accusedchild of the accusation and judgment against
him or her and inquire as to whether there is any cause to show why sentence
should not be pronounced. The accusedchild shallmust be afforded the opportunity
to present evidence of mitigating circumstances. The court must consider all
available and appropriate sentences, including alternative sanctions. The
sentencecourt shallmust be pronounced the sentence in open court and in the
presence of the one found guilty of contemptchild.




                                         -8-
