DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DERRICK TYRONE JENKINS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-1171
[June 23, 2021]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Robert Panse, Judge; L.T. Case Nos. 50-2019-AP-000071-
AXXX-MB and 50-2019-MM-001265-AXXX-MB.
Andrew B. Greenlee of Andrew B. Greenlee, P.A., Sanford, and Gregory
C. Rosenfeld of the Law Offices of Greg Rosenfeld, P.A., West Palm Beach,
Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and MaryEllen M.
Farrell, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Affirmed. See O’Brien v. State, 248 So. 2d 252 (Fla. 4th DCA 1971).
DAMOORGIAN, J., and ROBINSON, MICHAEL A., Associate Judge, concur.
WARNER, J., dissents with opinion.
WARNER, J., dissenting.
Appellant was convicted of indirect criminal contempt for sending an
expletive-laced diatribe to a circuit court judge after the judge dismissed
his civil case, accusing the judge of incompetence and impugning his
integrity. On appeal, appellant claims that the county court judge who
tried the contempt proceeding lacked subject matter jurisdiction. I agree
that the county court lacked jurisdiction, and I would reverse.
After receiving the letter, the circuit court judge to whom it was
addressed issued an order to show cause and disqualified himself from
presiding over the contempt matter. The case was later assigned to
another circuit court judge to try the contempt, but subsequently the chief
judge of the circuit ordered the case to be transferred to the county court
criminal division. A misdemeanor file was opened, and the order directed
that a “county court criminal judge” hear the case.
Section 38.22, Florida Statutes (2019), provides that “[e]very court may
punish contempts against it whether such contempts be direct, indirect,
or constructive, and in any such proceeding the court shall proceed to hear
and determine all questions of law and fact.” (emphasis added). As I read
the statute, each court can hear contempts against it. No provision allows
one level of court to hear contempts committed in another court. Cf., e.g.,
Schaab v. State, 33 So. 3d 763 (Fla. 4th DCA 2010); Johnson v. State, 218
So. 3d 957 (Fla. 5th DCA 2017). The county court did not have subject
matter jurisdiction to hear a circuit court contempt, any more than it
would have jurisdiction to hear a civil case in excess of its jurisdictional
amount.
The State suggests that the county court judge was acting as a circuit
court judge, pursuant to a local administrative order. However, the Florida
Rules of Criminal Procedure require that the chief justice of the supreme
court appoint a different judge to try a contempt, not the chief judge of the
circuit court. Florida Rule of Criminal Procedure 3.840(e) provides:
Disqualification of Judge. If the contempt charged involves
disrespect to or criticism of a judge, the judge shall disqualify
himself or herself from presiding at the hearing. Another
judge shall be designated by the chief justice of the supreme
court.
The local administrative order cannot conflict with the rules of criminal
procedure. See Fla. R. Jud. Admin. 2.120(c) (“Administrative Order: A
directive necessary to administer properly the court’s affairs but not
inconsistent with the constitution or with court rules and administrative
orders entered by the supreme court.”). Moreover, the administrative
order did not purport to appoint a county judge to temporarily serve as a
circuit court judge. Instead, the order states that in cases where the judge
cannot preside over the contempt because of criticism of the judge, “the
clerk will randomly assign the indirect criminal contempt case to a judge
in the county criminal division at the same courthouse.” See Order in re
Assignment of Criminal and Civil Contempt Cases, No. 2.313 (Fla. 15th
Cir. Ct. Mar. 8, 2019).
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A challenge to subject matter jurisdiction may be made at any stage of
the proceedings. Therefore, I conclude that appellant may raise it in this
appeal. The county court judge did not have jurisdiction to hear this
contempt proceeding, and we should reverse.
As to the merits, while I agree that O’Brien v. State, 248 So. 2d 252 (Fla.
4th DCA 1971), is on point and supports an affirmance of the conviction,
I am more inclined to agree with Judge Reed’s dissent in that case which
stated:
[A] very careful distinction must be made between
communications which are merely personally offensive to a
judge and those which may have a genuinely degrading effect
on the performance of his official duties. The former should
never be considered as contemptuous. The latter, when they
take the form of out-of-court comment regarding a pending
judicial proceeding, may be held contemptuous only where the
evidence indicates that they present a clear and present
danger to the proper administration of justice.
Id. at 258 (citations omitted). Because in this case the court had entered
a final order of dismissal and the rehearing period had ended, there were
no further proceedings before the circuit judge. Thus, the letter could not
be interpreted as attempting to obstruct the judge in the performance of
his duties. It was personally offensive and wrongful in impugning the
character of the judge and his adherence to the rule of law, but it should
not be punishable by the immense power of contempt.
My only hesitation is that the letter was filled with expletives directed
at the judge. Had appellant made these comments in open court, they
clearly would have been punishable by direct contempt. See, e.g., Williams
v. State, 222 So. 3d 596 (Fla. 4th DCA 2017); Woodie v. Campbell, 960 So
2d 877 (Fla. 1st DCA 2007). While I could find no case involving the use
of profanity in a letter to a judge, or a pleading that was filed with the
court, it seems to me that where such language is aimed at the judge in a
letter sent directly to the judge as well as filed with the court, this could
be as contemptuous and interfering with the dignity of the court as
language in open court.
However, in this case the letter was sent after the case had concluded.
Therefore, given the circumspection required in the use of the contempt
power, I agree with Judge Reed, when he wrote: “[The letter] could and
should have been disposed of by relegation to the trash bin. The
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appellant’s letter was clearly unfair and irrational, but as a matter of law
it was not contempt.” 248 So. 2d at 258 (Reed, J., dissenting).
* * *
Not final until disposition of timely filed motion for rehearing.
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