State of Florida v. Alex Diaz de la Portilla

177 So. 3d 965, 40 Fla. L. Weekly Supp. 626, 2015 Fla. LEXIS 2465, 2015 WL 6749921
CourtSupreme Court of Florida
DecidedNovember 5, 2015
DocketSC14-1625
StatusPublished
Cited by10 cases

This text of 177 So. 3d 965 (State of Florida v. Alex Diaz de la Portilla) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Florida v. Alex Diaz de la Portilla, 177 So. 3d 965, 40 Fla. L. Weekly Supp. 626, 2015 Fla. LEXIS 2465, 2015 WL 6749921 (Fla. 2015).

Opinions

LEWIS, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Diaz de la Portilla v. State, 142 So.3d 928 (Fla. 1st DCA 2014). In its decision the district court ruled upon the following question, which the court certified to be of great public importance:

Whether a party who is ordered by a trial court to appear at a scheduled hearing, but fails to do so, may be found in direct criminal contempt under Florida Rule[] of Criminal Procedure 3.830; or whether such conduct should be addressed as indirect criminal contempt under Florida Rule[ ] of Criminal Procedure 3.840?

Id. at 935. Both Diaz de la Portilla and the State take the position that the failure to appear pursuant to an order should be [967]*967treated as indirect criminal contempt under rule 3.840. We agree. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

BACKGROUND

This criminal contempt matter arises from the failure of Respondent Alex Diaz de la Portilla to appear pursuant to a court order at a hearing on a motion to hold him in contempt during a dissolution of marriage proceeding. During the dissolution proceeding, Diaz de la Portilla was ordered to deliver one of two dogs owned by the couple into the wife’s custody, which he failed to do. Diaz de la Portilla, 142 So.3d at 929. As a result, the wife filed a motion for contempt. Id. A hearing on the motion was scheduled, and the trial court issued an order to show cause that directed Diaz de la Portilla to appear. Id.

During the hearing on the motion for contempt, at which. Diaz de la Portilla did not appear, the trial court held him in civil contempt for failure to comply with the order .to transfer the dog to his wife. Id. The court ordered Diaz de la Portilla to comply with the order or be committed to jail for thirty days. Id. However, Diaz de la Portilla still did not transfer the dog, and another motion for contempt was filed. Id. The motion was served on counsel for Diaz de la Portilla, and at a subsequent hearing on the motion, only counsel for Diaz de la Portilla was present, not Diaz de la Portilla himself. Id. No explanation was provided for his absence. Id. at 929-30.

The trial court verbally held Diaz de la Portilla in civil contempt for failure to comply with the order to appear, as well as the order to transfer the dog. Id. at 930. The trial court also held Diaz de la Portilla in criminal contempt, explaining:

At this juncture in this case it is my opinion that it is no longer practical, no longer possible for me to coerce compliance because your client is not going to do it. He is going to absent himself; he is going to continue to vilify his wife; he is going to continue to thumb his nose at this Court and to challenge my authority to enforce not only my Orders but the Orders of [the predecessor judge.] ... Based upon the sworn Motion and the sworn testimony today I find him to be in civil contempt for not appearing today and not giving the dog to [his wife] as per [the predecessor judge’s] Order.... In addition, based upon the fact that I have ordered him to appear and he has not appeared here today I find him in direct criminal contempt.

Id. (some alterations in original). Additionally, the .trial court issued a written Order of Direct Criminal Contempt and Warrant for Commitment that stated, in relevant part:

WHEREAS, this Court held a hearing on said Order to Show Cause on August 23, 2011, with counsel for Petitioner/Wife and Petitioner/Wife appearing; Counsel for Respondent/Husband appearing but without his client and offering no explanation or reason as to why his client was not present as directed, and presenting no legal or factual basis for said non-appearance; and
WHEREAS, this Court having no ability to inquire of the Respondent/Husband as to any issues due to his [willful] non-appearance, and having personal knowledge of his failure to appear; and
WHEREAS, the Court was unable to inquire of the Respondent/Husband as to why he should not be adjudged guilty of Direct Criminal Contempt; and
WHEREAS, sworn testimony was taken from Petitioner/Wife that Respondent/Husband had still not complied [968]*968with the prior Orders of this Court by delivering her one of the dogs, and finding the Respondent/Husband still has the dogs, thereby giving him the ability to comply with the prior Orders of this Court; and
WHEREAS, the Court found that the actions of Respondent/Husband were [willful] contempt that occurred beyond a reasonable doubt directly in the presence of the Court and warranted appropriate sanctions; and
WHEREAS the Court has complied with Rule 3.830 in this finding and process, and failure to appear can be Direct Criminal Contempt Bouie v. State, 784 So.2d 521 (Fla. 4th DCA 2001); Speer v. State, 742 So.2d 373 (Fla. 1st DCA 1999); Porter v. Williams, 392 So.2d 59 (Fla. 5th DCA 1981);
NOW, THEREFORE, in consideration thereof, it is
ORDERED AND ADJUDGED that Respondent/Husband, ALEX DIAZ DE LA PORTILLA, is guilty of Direct Criminal Contempt of this Court for his failure to appear at [the] hearing herein on the Order to Show Cause, as directed by the Order to Show Cause served on his counsel on August 4, 2011 (served on counsel due to the Court having no knowledge as to the current whereabouts of Respondent/Husband).

During the appeal of the criminal contempt order, the State was joined as an indispensable party and it recommended that the failure to appear in court be treated as indirect, rather than direct, criminal contempt. Diaz de la Portilla, 142 So.3d at 931, 933. Based on prior precedent, the First District held that the failure to appear pursuant to an order constituted direct criminal contempt. Id. at 933 (citing Speer, 742 So.2d at 373). However, the district court concluded that the evidence was insufficient to establish criminal contempt because there was no evidence regarding whether Diaz de la Portilla knowingly failed to attend the hearing without an excuse — an element of the offense. Id. Accordingly, the district court reversed the conviction, but certified the above-quoted question to be one of great public importance.1 Id. at 935.

ANALYSIS

Direct Criminal Contempt

This Court has previously explained the difference between direct and indirect criminal contempt:

Where the act constituting the contempt is committed in the immediate presence of the court, this contempt is defined as direct. Where an act is committed out of the presence of the court, the proceeding to punish is for indirect (sometimes called constructive) contempt. A review of the Rules of Criminal Procedure ... reflects the greater procedural due process safeguards imposed when proceedings are for indirect criminal contempt.

Pugliese v. Pugliese, 347 So.2d 422, 425 (Fla.1977). Direct criminal contempt, also referred to as summary contempt, see Scott v. Anderson, 405 So.2d 228, 237 (Fla.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Neil Joseph Gillespie v. State of Florida
District Court of Appeal of Florida, 2024
Luis Born-Suniaga v. State of Florida
256 So. 3d 783 (Supreme Court of Florida, 2018)
NICHOLAS P. SANDELIER v. STATE OF FLORIDA
238 So. 3d 831 (District Court of Appeal of Florida, 2018)
Alfonzia Biles v. Tiffany Roby
Court of Appeals of Tennessee, 2017
White v. Junior
219 So. 3d 230 (District Court of Appeal of Florida, 2017)
M.J. v. State
202 So. 3d 112 (District Court of Appeal of Florida, 2016)
Inquiry Concerning a Judge No. 15-530 Re: Jerri Collins
195 So. 3d 1129 (Supreme Court of Florida, 2016)
Noel Plank v. State of Florida
190 So. 3d 594 (Supreme Court of Florida, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
177 So. 3d 965, 40 Fla. L. Weekly Supp. 626, 2015 Fla. LEXIS 2465, 2015 WL 6749921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-florida-v-alex-diaz-de-la-portilla-fla-2015.