Anton v. Anton

106 So. 3d 34, 2013 WL 332075, 2013 Fla. App. LEXIS 1227

• Court: District Court of Appeal of Florida
• Decided: January 30, 2013
• Docket: No. 3D12-1508
• Status: Published

Opinion

FERNANDEZ, J.

Alejandro 0. Anton appeals a finding of indirect criminal contempt and order of commitment alleging that the trial court failed to comply with the requirements set forth in Florida Rule of Criminal Procedure 3.840. We agree and reverse.

Rule 3.840 sets forth the procedural safeguards that a court must enforce prior to the imposition of a sentence for indirect criminal contempt.¹ The defendant must receive notice of the essential facts that constitute the criminal contempt and have an opportunity to show cause why the sentence should not be imposed.

Appellee Beatriz Rodriguez Anton initiated the contempt proceeding below in this dissolution of marriage case. The record reflects that she filed numerous motions for contempt, seeking compliance with a court order that prohibited the husband from having any direct or indirect contact with any of the tenants of a multi-unit residential apartment building, which is a marital asset. The husband appeared at the contempt hearing at which he admitted that he violated the terms of the court’s order. The court, however, did not issue a show cause order, and neither the notice of hearing on the wife’s various contempt motions nor the motions she filed placed the husband on notice that he potentially faced a criminal penalty at that contempt hearing. Thus, the court’s finding of indirect criminal contempt constituted fundamental error. See Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977); De Castro v. De Castro, 957 So.2d 1258 (Fla. 3d DCA 2007).

We therefore reverse the court’s finding of indirect criminal contempt without prejudice.

Reversed.

1 . Rule 3.840 provides, in pertinent part, as follows:

(a) Order to Show Cause. The judge, on the judge's own motion or an 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.

(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.