DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SCOTT S. LEVINE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-118
[February 3, 2021]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Cymonie S. Rowe, Judge; L.T. Case Nos. 502017CA002831
and 502019MM012967A.
Leonard S. Feuer of Leonard Feuer, P.A., West Palm Beach, for
appellant.
Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III,
Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
Attorney Scott Levine appeals his conviction and sentence for one count
of indirect criminal contempt. We reverse because the charging document,
the order to show cause, failed to state the essential facts constituting the
criminal contempt, as required by Florida Rule of Criminal Procedure
3.840(a).
The contempt proceedings arose from Levine’s conduct during his
representation of plaintiffs in a separate civil proceeding. To say that
Levine dropped the litigation ball in that civil case is an understatement.
Levine’s failings arose from inaction. He ignored trial court orders. He
failed to attend a case management conference. He conducted no
discovery. He did not comply with two mediation orders.
Levine took the position that his failure to act arose from multiple
medical problems and a “severe and debilitating depression.”
Instead of imposing lesser sanctions, the trial court initiated an indirect
criminal contempt proceeding against Levine by issuing a rule to show
cause. The court held a contempt hearing immediately after a hearing on
a motion to strike the plaintiffs’ pleadings in the civil case. 1 The trial court
found appellant guilty of one count of indirect criminal contempt and
sentenced him to pay a fine of $860 and to a term of probation.
We reverse the contempt order because the order to show cause failed
to state the essential facts constituting the contempt.
Florida Rule of Criminal Procedure 3.840 sets forth the procedure that
must be followed in the prosecution of indirect criminal contempt. Rule
3.840(a) provides, in pertinent part:
(a) Order to Show Cause. The judge, on the judge’s own
motion or on affidavit of any person having knowledge of the
facts, may issue and sign an order directed to the defendant,
stating the essential facts constituting the criminal contempt
charged and requiring the defendant to appear before the
court to show cause why the defendant should not be held in
contempt of court.
Fla. R. Crim. P. 3.840(a) (emphasis added). “Failure to strictly follow the
dictates of Rule 3.840 . . . constitutes fundamental, reversible error.”
Graham v. Fla. Dep’t of Children & Families, 970 So. 2d 438, 441–42 (Fla.
4th DCA 2007). Having chosen the sanction of criminal contempt, as
opposed to coercive civil contempt, the trial court was required to comply
with Rule 3.840.
In this case, the order to show cause directed Levine “to show cause
why he should not be held in and punished for indirect criminal contempt
of Court, pursuant to rule 3.840, Florida Rules of Criminal Procedure, for
knowingly and intentionally failing to comply with the orders of this
Court.” The order recites the titles of the four court orders Levine was
accused of violating without setting forth any “essential facts” constituting
the contempt.
1 In a detailed written order, the trial court granted the motion to strike the
pleadings and dismissed the complaint with prejudice. The court discussed each
of the factors outlined in Kozel v Ostendorf, 629 So. 2d 817 (Fla. 1993). We
affirmed that order in a separate opinion issued at the same time as this one.
See Arnoul v. Perlstein, ___ So. 3d ___, Case No. 4D20-67 (Fla. 4th DCA Feb. 3,
2021).
2
In a similar case, we reversed an indirect criminal contempt conviction
where the order to show cause merely identified the order that was
violated, without more. In Blechman v. Dely, 138 So. 3d 1110, 1113 (Fla.
4th DCA 2014), we held that the order to show cause failed to set forth
“essential facts” constituting the contempt charged when the order
directed the appellant to show cause “as to why he should not be held in
contempt of court and for other sanctions for failure to comply with this
Court’s November 21, 2011 Order.”
The state contends that there was no violation of Rule 3.480(a) because
the trial court “incorporated” the four court orders in the order to show
cause. However, the order to show cause merely referenced the applicable
orders; it did not incorporate them, attach them, or otherwise elaborate on
how those orders were violated. Compare Mix v. State, 827 So. 2d 397,
399 (Fla. 2d DCA 2002) (holding that an order to show cause was legally
insufficient where the order referred to an unsworn motion that formed
the basis of the order to show cause, but neither the motion nor affidavits
were attached to the order), and Lindman v. Ellis, 658 So. 2d 632, 634 (Fla.
2d DCA 1995) (concluding that an order to show cause was legally
insufficient because it relied on an unsworn motion to state the allegations
and it failed to incorporate the sworn affidavits in the record), with Brown
v. State, 595 So. 2d 259, 260 (Fla. 2d DCA 1992) (ruling that an order to
show cause was sufficient because it incorporated and attached the former
wife’s sworn petition).
Because the order to show cause did not state the essential facts
constituting the criminal contempt charged, and did not otherwise attach
or incorporate anything to provide notice of such facts, we reverse without
prejudice to initiate new indirect criminal contempt proceedings or to
impose some other sanction short of criminal contempt. See Wisniewski
v. Wisniewski, 657 So. 2d 944, 945 (Fla. 2d DCA 1995); see also Moakley
v. Smallwood, 826 So. 2d 221, 224 (Fla. 2002) (concerning the trial court’s
inherent authority to impose attorney’s fees as a sanction for bad faith
attorney conduct).
Reversed.
LEVINE, C.J., and CONNER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3