In Re Shafer

Andrews, Judge,

concurring in part and dissenting in part.

I agree with the majority’s conclusion that this case involved summary adjudication and punishment for direct criminal contempt. As the majority states: “During trial, a trial judge has the power, *728when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing.” Dowdy v. Palmour, 251 Ga. 135, 141-142 (304 SE2d 52) (1983).

I further agree that, because the trial court’s order failed to sufficiently set forth the words, acts, or circumstances upon which the court based its judgment of contempt, this court cannot review the trial court’s judgment under the reasonable doubt standard, and the judgment of contempt must be reversed.

I disagree, however, with the majority’s conclusion that a remand is inappropriate because there is no existing record or transcript of the allegedly contemptuous behavior made at the time of such behavior. This court has held that, where the judgment of contempt does not contain facts sufficient for appellate review, a remand for the purpose of allowing the trial court to set forth the facts is the appropriate procedure. Garland v. State, 99 Ga. App. 826 (110 SE2d 143) (1959); Garland v. State, 101 Ga. App. 395 (114 SE2d 176) (1960); Spruell v. State, 145 Ga. App. 720 (244 SE2d 636) (1978); Spruell v. State, 148 Ga. App. 99 (250 SE2d 807) (1978); Jordan v. Hodges, 162 Ga. App. 473 (291 SE2d 778) (1982).

The majority holds that a reviewable record of the events cannot be reconstructed on remand where there is no transcript of the events, and the trial court did not contemporaneously create an adequate written record describing the events. To the contrary, reconstruction of the record on remand comports with the procedures set forth in OCGA § 5-6-41 for preparation of a record from recollection. “Where a trial is not reported as referred to in subsections (b) and (c) of this Code section or where for any other reason the transcript of the proceedings is not obtainable and a transcript of evidence and proceedings is prepared from recollection, the agreement of the parties thereto or their counsel, entered thereon, shall entitle such transcript to be filed as a part of the record in the same manner and with the same binding effect as a transcript filed by the court reporter as referred to in subsection (e) of this Code section. In case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review; and, if the trial judge is unable to recall what transpired, the judge shall enter an order stating that fact.” OCGA § 5-6-41 (g).

Under OCGA § 5-6-41 (g), the trial judge is empowered to act as the final arbiter in any reconstruction of a description of unreported events. The judge’s recollection is final unless the judge enters an order stating that he or she is unable to recall what transpired. The section obviously contemplates that, if the trial judge is able to recall, *729the decision of the judge is final as to disputed matters involving the parties and the court. There is no reason to hold that trial judges involved in direct summary contempt proceedings are not allowed on remand to recall what happened in front of them in the trial court.

Decided March 17, 1995. Herbert Shafer, pro se. Spruell & Dubuc, Billy L. Spruell, for appellant. David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Moreover, this case is not, as the majority states, like In re Adams, 215 Ga. App. 372 (450 SE2d 851) (1994). There, we held that the case was not properly one for imposition of summary contempt, because it was clear that the trial court held Adams in contempt, not for present conduct observed by the court, but for conduct which occurred 21 days earlier. Accordingly, we found that Adams was entitled to notice of the charges, and a hearing before another judge. See Strayhorn v. Staley, 177 Ga. App. 458 (339 SE2d 740) (1986); In re Gouge, 206 Ga. App. 462, 464-465 (425 SE2d 882) (1992); Dowdy, supra at 141-142. Here, the contempt order shows that the trial judge’s inquiry into Shafer’s conduct in the prior matters was not a basis for the court’s finding of contempt. The only action taken by the trial judge as a result of Shafer’s prior conduct in these matters was to verbally caution Shafer. Shafer’s reaction to this caution, in the presence of the court, was the basis for the judge’s finding that he was guilty of direct criminal contempt of court. Under these circumstances, Shafer was only entitled to be given an opportunity to speak in his own behalf prior to the court’s announcement of summary punishment for contempt. Dowdy, supra at 141-142. Accordingly, I disagree with the majority’s suggestion that Shafer was deprived of any due process rights to notice of charges or a hearing.

This case should be reversed and remanded for the trial court to set forth the specific facts upon which the judgment of contempt was based, if the trial judge recalls.

I am authorized to state that Chief Judge Beasley and Judge Ruffin join in this dissent.