State v. North

Burgess, J.,

¶20. concurring in part and dissenting in part. Certainly the majority is correct to uphold the trial court’s initial finding and punishment of defendant’s direct contempt of court for profaning the judge upon receiving his sentences for the underlying crimes of false pretense and passing bad checks. Treating defendant’s second and third rounds of insult to the judge as one and the same transaction is also supported by the circumstances. It does not follow, however, that defendant’s choice to renew his verbal attack on the judge, after finishing his first attack, starting to leave court, and being called back for an additional sentence, is merely an extension of the first insult deserving of a single punishment. Because the record supports the trial court’s finding and sentencing of two successive contempts of court, I respectfully disagree with lumping all of defendant’s contumacy together as one single contempt and, so, dissent in part.

¶21. Defendant indulged in at least two separate instances of direct contempt. Having “told off” the judge once, defendant was in the process of leaving, was ordered back, and was summarily adjudged in contempt and sentenced for his completed insult to the court. Evidently not satisfied with his achievement to that point, defendant reasserted his contempt by renewing the insult for which he had just been sentenced. It cannot reasonably be doubted that the opportunity for further contempt arose from, and that the second and subsequent insult was inspired by, the trial court’s contempt sentence and refusal to let the first insult pass without consequence.

¶22. As surely as the record reflects that the incidents were related, the record supports the trial court’s response to defendant’s renewed verbal abuse as a subsequent, and separate, contempt. In contrast to the majority’s reliance on Butler v. State, this was not a situation where defendant engaged in an ongoing outburst intermittently interrupted by court warnings. 330 So. 2d 244, 245 (Fla. Dist. Ct. App. 1976). Nor did defendant merely add *36visual emphasis to his expression in the tradition of the contemnor in Commonwealth v. Williams, whose finger gesture accompanying his profanity was deemed indistinguishable in meaning from his verbal expression, and was thus treated by the reviewing court as part of one simultaneous insult, rather than a separate contempt. 2000 PA Super 165, ¶ 32, 753 A.2d 856. The majority presents a closer, but still distinguishable, analogy in State v. Lingwall, 637 N.W.2d 311, 314-15 (Minn. Ct. App. 2001), where that appellate court rejected serial punishments for serial insults by a defendant, each insult following an interruption by the court to impose a summary consecutive sentence of contempt. Here, however, defendant’s subsequent profanity followed not an interruption of any ongoing tirade, but was offered by defendant after a called — albeit almost immediate — halt to his exit after the original verbal assault was done, his return appearance before the court, and upon his hearing the court’s contempt finding and sentence. That defendant was moved to start in again on the judge after less than a quarter minute break makes it no less a fresh attack, and warrants no less than a fresh sentence in consequence.

¶ 23. Whether that additional sentence is concurrent or consecutive is left to the trial court’s discretion. The majority appropriately curbs that discretion to avoid a third consecutive sentence when the third insult was not reasonably distinguished from the second, and appears to be all part and parcel of the same name-calling exercise by defendant after being returned to the bench. But the second and third insult, considered together, is distinct from the first instance of contempt and may be separately sanctioned. Because another court might impose a different sentence or sentence structure does not amount to an abuse of discretion on the part of the trial court.* “[Djifference in judicial opinion is not synonymous with abuse of judicial discretion.” Houran v. Preferred Accident Ins. Co., 109 Vt. 258, 269, 195 A. 253, 257 (1938) (quotations omitted), abrogated on other grounds by Coop. Fire Ins. Ass’n v. White Caps, Inc., 166 Vt. 355, 358, 694 *37A.2d 34, 36 (1997). Accordingly, the trial court’s second consecutive sentence for direct contempt of court should be affirmed.

¶ 24. I am authorized to state that Chief Justice Reiber joins in this partial dissent.

The untenable risk, raised by the majority, of amassing decades of prison time in minutes “as the result of a prolonged diatribe” need not concern us here, since such a potential was not realized; nor could it be so for the second, although extended, session of contumacious comments by this defendant following his first.