A trial judge has the power to hold anyone in contempt of court for conduct that occurs in the judge’s presence. The Court will give the person an opportunity to explain why he or she should not be held in contempt of court. If the Court is not satisfied by the explanation, the Court can then sentence that person to up to 180 days in the county jail.
A court can do the same thing for conduct that does not occur within the sight or hearing of the judge. Most commonly, contempt of court is sought when one of the parties to litigation violates a court order outside of the courtroom. In family law, the failure to pay child support is frequently sought to be remedied by a contempt action.
However, because the contemptuous behavior occurred outside of the judge’s presence, there are procedural safeguards in place to ensure that the accused has due process and is afforded an adequate opportunity to defend himself.
The Rule states:
A criminal contempt, except as provided in rule 3.830 concerning direct contempts, shall be prosecuted in the following manner:
(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. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant.
(b) Motions; Answer. The defendant, personally or by counsel, may move to dismiss the order to show cause, move for a statement of particulars, or answer the order by way of explanation or defense. All motions and the answer shall be in writing unless specified otherwise by the judge. A defendant’s omission to file motions or answer shall not be deemed as an admission of guilt of the contempt charged.
(c) Order of Arrest; Bail. The judge may issue an order of arrest of the defendant if the judge has reason to believe the defendant will not appear in response to the order to show cause. The defendant shall be admitted to bail in the manner provided by law in criminal cases.
(d) Arraignment; Hearing. The defendant may be arraigned at the time of the hearing, or prior thereto at the defendant’s request. A hearing to determine the guilt or innocence of the defendant shall follow a plea of not guilty. The judge may conduct a hearing without assistance of counsel or may be assisted by the prosecuting attorney or by an attorney appointed for that purpose. The defendant is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and testify in his or her own defense. All issues of law and fact shall be heard and determined by the judge.
(e) 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.
(f) Verdict; Judgment. At the conclusion of the hearing the judge shall sign and enter of record a judgment of guilty or not guilty. There should be included in a judgment of guilty a recital of the facts constituting the contempt of which the defendant has been found and adjudicated guilty.
(g) Sentence; Indirect Contempt. Prior to the pronouncement of sentence, the judge shall inform the defendant of the accusation and judgment against the defendant and inquire as to whether the defendant has any cause to show why sentence should not be pronounced. The defendant shall be afforded the opportunity to present evidence of mitigating circumstances. The sentence shall be pronounced in open court and in the presence of the defendant.
The 2019 case of In Re: Contempt Adjudication of Jessie L. Weiner illustrates why these protections are put in place and how easily they can violated by a trial judge.
In this case, Ms. Weiner was the current wife whose husband was involved in litigation over custody of his child with his ex-wife. The court entered an order prohibiting the parties from discussing the matter over social media and requiring them to prevent family members from doing the same. Ms. Weiver violated this order by publishing disparaging remarks about the judge.
The court issued an Order to Show Cause and Ms. Weiner was never served with the Order but received a copy of it the day prior to the hearing. She retained an attorney who argued for a continuance, dismissal, removal of the trial judge, and against the entry of a contempt order. Everything was denied and Ms. Weiner was sentenced to 5 months in the county jail.
The appellate court reversed the trial court. The Court held that (1) the Order not to publish information about the case on social media did not apply to her because she was not a party to the litigation, (2) she was not served with the Order to Show Cause within a reasonable time to allow for preparation of her defense, and (3) that the trial judge should have recused herself.
Fortunately for her, she had good attorneys who were able to gain her release prior to expiration of five months. Not everyone is so lucky.
First and foremost, don’t needlessly aggravate a judge. Even though this judge was ultimately wrong in what she did, they are still human with human emotions. Most of the time, it’s not good for your case either.
Second, if you are charged with indirect criminal contempt, hire a good attorney. Valrico attorney Adam Bantner is board certified by the Florida Bar in criminal trial law. He can expertly assist you in defending against these and other criminal allegations. If you are in this situation, call 813.397.3965 to schedule your free consultation.