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