SC18-291 Jennifer M. Woodward v. State of Florida
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SC18-291 Jennifer M. Woodward v. State of Florida

October 11, 2019


>>GOOD TO SEE YOU AGAIN,
JUSTICE CANADY.
BENJAMIN EISENBERG ON BEHALF OF
THE PETITIONER, JENNIFER WOODWARD.
WE’RE HERE TODAY BASED ON A
DIRECT CONFLICT OF CASES
REGARDING THE TRIAL COURT, WHETHER THE TRIAL COURT MUST
INSURE TRANSCRIPTION OF DIRECT
CRIMINAL CONTEMPT PROCEEDINGS.
THERE ARE REALLY TWO INQUIRIES IN THIS CASE.
THE FIRST IS WHETHER OR NOT THE
TRIAL COURT HAS THE DUTY TO
INSURE TRANSCRIPTION, AND THE SECOND IS THE REMEDY–
>>COUNSEL, CAN I ASK YOU A
QUESTION?
I WANT TO FACTUALLY UNDERSTAND THE RECORD.
>>SURE.
>>MY UNDERSTANDING IS MARCH 2ND
OF 2016, THERE WAS A HEARING BEFORE THE TRIAL COURT JUDGE–
>>PROBATE PROCEEDING.
>>ADVERSARIAL PROBATE
PROCEEDING, RIGHT. AND IN THAT CASE THE DEFENDANT
IN THIS CASE, MS. WOODWARD, WAS
ASKED TO LEAVE, AND SHE WAS
EXCUSED. FOLLOWING THAT HEARING, THE
ATTORNEY FOR THE PROBATE MATTER,
I BELIEVE, FILED A PETITION
ASKING THE TRIAL COURT JUDGE TO HOLD HER IN CONTEMPT FOR ALLEGED
MISREPRESENTATION THAT SHE MADE
AT THE MARCH 2ND HEARING.
>>YES, YOUR HONOR.>>AND THEN THERE WAS A HEARING,
ANOTHER HEARING THAT TOOK PLACE
ON MARCH 17TH OF 2016 WHERE SHE
SHOWED UP, AND SHE WAS AT THAT TIME REPRESENTED BY ANOTHER
LAWYER–
>>FOR A VERY BRIEF PERIOD.
>>– FOR A VERY BRIEF TIME, AND THEN THERE WAS A CONFLICT OF
INTEREST THAT OCCURRED, AND AS A
RESULT OF THAT, HE WITHDREW FROM
REPRESENTING HER, AND SHE WAS LEFT UNREPRESENTED DURING THIS
MARCH 17TH HEARING.
>>YES, YOUR HONOR.
>>OKAY. AND DURING THAT MARCH 17TH
HEARING, THAT MS. WOODWARD TOLD
THE JUDGE, IN FACT, SHE DID NOT
SAY THOSE STATEMENTS–>>YES.
>>AND THE JUDGE SAID YOU DID,
IN FACT, SAY THOSE STATEMENTS,
BUT THE TRANSCRIPT SHOWS, IN FACT, SHE DID NOT MAKE THOSE
STATEMENTS BECAUSE SHE HAD BEEN
ASKED TO LEAVE AT THE MARCH 2ND
HEARING.>>AND, YOUR HONOR, I’LL CLARIFY
AT THE TIME OF THE MARCH 17TH
HEARING, THERE HAD NOT BEEN AN
ORDER TO SHOW CAUSE. SO THE HEARING ON THAT WAS HELD
LATER AND, UNFORTUNATELY, IT IS
A THE ONE WE DON’T HAVE THE
TRIPLET TOO.>>RIGHT.
IS IN ORDER TO SHOW CAUSE
ISSUES, CORRECT?
I GUESS THERE’S, LIKE, TWO DATES.
THERE’S AN INITIAL DATE–
>>IT’S RESET.
>>– AND A DATE OF JUNE. BUT DURING THE MARCH 17TH
HEARING, THE TRIAL COURT JUDGE
DIRECTS MS. WOODWARD AS SHE’S
TRYING TO ANSWER, TO ANSWER THE QUESTION ALTHOUGH SHE’S TRYING
TO ANSWER THE QUESTION.
MY QUESTION IS FOR JUNE 17TH,
THIS IS THIS ORDER TO SHOW CAUSE.
AND THAT IS AN ORDER TO SHOW
CAUSE IN AN INDIRECT CRIMINAL
CONTEMPT HEARING–>>YES, YOUR HONOR.
>>ON WHAT TRANSPIRED ON THE
MARCH 2ND HEARING.
>>YES, YOUR HONOR.>>THERE IS NO COUNSEL PRESENT.
>>THE PUBLIC DEFENDER DID NOT
FILE A NOTICE OF APPEARANCE
UNTIL 11 DAYS AFTER SHE WAS CONVICTED AND SENTENCED.
>>DID THE TRIAL COURT JUDGE
ADVISE HER EVEN AT THE MARCH
17TH HEARING THAT SHE HAD THE ABILITY TO RETAIN COUNSEL OR
THAT HE COULD ASSIGN COUNSEL TO
HER?
>>SHE INDICATED AT THE HEARING THAT SHE WOULD LIKE THE
OPPORTUNITY TO RETAIN COUNSEL,
BUT HE NEVER– THE TRIAL JUDGE
NEVER MENTIONED THAT SHE’D BE ENTITLED TO COUNSEL.
THAT’S BECAUSE AT THAT TIME SHE
HAD NOT BEEN CHARGED WITH
CONTEMPT. WE DON’T KNOW WHAT HAPPENED AT
THE JUNE 17TH HEARING BECAUSE
THERE’S NO TRANSCRIPT.
AND THAT IS A PROBLEM. AND–
>>BUT AT THE MARCH 17TH
HEARING, THIS IS MY CONCERN.
AT THE MARCH 17TH– NOT THE MARCH 17TH HEARING, BUT THE JUNE
17TH HEARING, THAT IS– IT WAS
NOTICED AS INDIRECT CRIMINAL
CONTEMPT HEARING AT THAT MOMENT IN TIME.
>>IT DID– I DON’T BELIEVE THE
SHOW CAUSE ORDER SPECIFICALLY
SAID INDIRECT CRIMINAL CONTEMPT. HOWEVER, IT SAID IN ORDER TO
SHOW CAUSE WHY YOU SHOULD NOT BE
HELD IN CONTEMPT–
>>BUT IT WAS SOLELY FOR PURPOSES OF WHAT TRANSPIRED AT
THE MARCH 2ND HEARING.
>>YES.
AND, YOUR HONOR, IN THIS APPEAL TO THE FOURTH DISTRICT COURT OF
APPEAL, THAT FINDING WAS
CHALLENGED AND REVERSED.
>>BUT SHOULD THERE NOT HAVE BEEN SINCE AT THE JUNE 17TH
HEARING BECAUSE IT WAS PREMISED
ON INDIRECT CRIMINAL CONTEMPT,
SHOULD THERE NOT HAVE BEEN AT THAT MOMENT IN TIME A
TRANSCRIPTION OR RECORDING OF
THE PROCEEDING?
>>THERE ABSOLUTELY SHOULD HAVE BEEN.
AND THAT BELIES THE PROBLEM OF
WHY WE NEED TO HAVE TRANSCRIPTS
IN DIRECT CRIMINAL CONTEMPT PROCEEDINGS.
THE TRIAL JUDGE IN THIS CASE
COMMITTED MULTIPLE ERRORS AS IT
RELATES TO THE INDIRECT CRIMINAL CONTEMPT PROCEEDINGS.
AND JUSTICE LAGOA JUST POINTED
OUT SEVERAL OF THEM.
WHETHER OR NOT THE DUE PROCESS LIMIT– I KNOW THAT THIS COURT
HAS RECOGNIZED AND SEVERAL
DISTRICT COURTS OF APPEAL HAVE
RECOGNIZED THERE ARE LIMITATIONS ON DUE PROCESS FOR DIRECT
CRIMINAL CONTEMPT.
HOWEVER, INDIRECT CRIMINAL
CONTEMPT DEFENDANTS ARE ENTITLED TO THE FULL PANOPLY OF–
>>JUDGE GROSS WROTE THE OPINION
FOR THE FOURTH DCA, AND HE
DISTINGUISHED IN THAT OPINION THE DIFFERENCE BETWEEN DIRECT
AND INDIRECT CRIMINAL CONTEMPT.
HE NOTED THIS, THE NEED TO
QUICKLY REASSERT ORDER IN THE COURTROOM JUSTIFIES IMMEDIATE
ACTION.
INSTEAD OF A DELAY TO INSURE THE
EXISTENCE OF A RECORD OF THE PROCEEDING.
SO THE ISSUE THAT I HAVE WITH
WHAT YOU’RE SAYING IS THAT WHEN
WE’RE DEALING WITH DIRECT CRIMINAL CONTEMPT, THAT IS
SOMETHING THE JUDGE ACTUALLY
SAW, HEARD OR BOTH.
HAPPENED IN THE PRESENCE OF THE COURT.
IF THERE WAS NO COURT REPORTER
PRESENT– FOR EXAMPLE, LET’S
SAY THIS WAS AN EVICTION HEARING IN PALM BEACH COUNTY, AND THE
DEFENDANT, WHOEVER IT WAS, ACTED
UP AND WAS HELD IN CONTEMPT.
I MEAN, TYPICALLY IN EVICTION PROCEEDINGS THERE’S NO RECORD.
IN PALM BEACH COUNTY THERE MAY
BE BECAUSE IT’S RECORDINGS.
BY THE TIME YOU GET A COURT REPORTER AND BRING HER IN, THE
INCIDENT HAS HAPPENED.
HOW CAN THAT OCCUR?
>>WELL, THAT IS– THERE’S A DIFFERENCE BETWEEN THE RECITAL
OF FACTS AND THE ACTUAL
PROCEEDINGS OF DUE PROCESS–
>>YOU SAYING THIS RECITAL OF FACTS BY THE JUDGE IS NOT
SUFFICIENT?
>>IT ISN’T SUFFICIENT TO LAY A
RECORD AS TO WHETHER OR NOT HE COMPLIED WITH THE DUE PROCESS
REQUIREMENTS OF 3.830 BECAUSE WE
HAVE NO IDEA OTHER THAN THE
RECITAL OF FACTS OF WHAT HE SAID OCCURRED.
>>DO WE HAVE ANY EVIDENCE THAT
HE ALLOWED THE EVIDENCE, OR TO
PRESENT EVIDENCE OF EXCUSING OR MITIGATING CIRCUMSTANCES IN THAT
RECORDER?
>>NO, YOUR HONOR, AND THAT’S
THE PROBLEM. THERE’S NO EVIDENCE ON THE
RECORDER THAT HE COMPLIED WITH
THE–
>>ALSO, I MEAN, WHEN I READ THE ORDER, I MEAN, IT’S UNCLEAR TO
ME, FRANKLY, THAT IT EVEN
HAPPENED.
>>IT MAY NOT HAVE.>>SINCE THERE WAS THAT MARCH–
MY CONCERN IS THE FOLLOWING, AND
I’M ADDRESSING THIS TO THE STATE
AS WELL. MY CONCERN IS THAT ON MARCH 17TH
THERE IS A HEARING WHERE THE
TRIAL COURT JUDGE REPEATEDLY
TOLD MS. WOODWARD TO ANSWER THE QUESTION.
THERE IS NO TRANSCRIPT OF JUNE
17TH, AND I UNDERSTAND THAT, BUT
THERE SHOULD HAVE BEEN BECAUSE IT WAS SUPPOSED TO BE AN
INDIRECT–
>>YES, YOUR HONOR.
>>BUT HERE WE ARE, AND SOMETHING ALLEGEDLY HAPPENED.
BUT I DON’T EVEN KNOW THAT IT
HAPPENED ON JUNE 17TH BECAUSE
THE ORDER THAT IS ENTERED IN THE RECORD DOESN’T EVEN TELL ME THAT
HEARING OCCURRED ON THIS DAY.
>>THAT’S THE PROBLEM.
>>AND THAT THIS IS WHAT HAPPENED ON THIS DAY.
FOR ALL I KNOW, THAT’S WHAT
HAPPENED ON MARCH 17TH.
>>YOUR HONOR, EXACTLY. AND MULTIPLE ERRORS OCCURRED AS
THE DIRECT CRIMINAL INTENT–
>>SO, OKAY.
IF THE ORDER HAD– I THINK THIS IS IN RESPONSE TO YOUR ANSWER TO
JUSTICE LABARGA’S QUESTION.
IF I ASKED WHY SHOULD I NOT HOLD
YOU IN CONTEMPT, CAN YOU GIVE ME MITIGATION AND THEN SENTENCE.
IN OTHER WORDS, LAID OUT EVERY
SINGLE THING THAT HAPPENED IN
THERE, WOULD WE HAVE A PROBLEM OR NOT HAVE A PROBLEM?
>>I BELIEVE WE STILL HAVE A
PROBLEM.
>>WHY’S THAT? I THINK THE ANSWER TO JUSTICE
LABARGA’S QUESTION WASN’T QUITE
RIGHT YOU’RE GOING EVEN FURTHER
THAN THAT.>>I WANT TO ANSWER HIS QUESTION
AND THEN I’LL TRANSITION TO
YOURS.
JUSTICE LABARGA’S QUESTION, AS YOU MENTIONED, EVERYTHING’S
RECORDED AUDIO.
ALL HE WOULD HAVE TO DO IS TELL
THE CLERK TO TURN ON THE–>>BUT THAT’S NOT TRUE
EVERYWHERE ELSE.
>>HOWEVER, THERE ARE
ALTERNATIVES. EVERY CRIMINAL, EVERY COUNTY
OBVIOUSLY HAS A CRIMINAL COURT.
THEY COULD HOLD–
>>I KNOW, SO THIS IS WHERE I NEED TO STOP YOU, BECAUSE– AND
I’LL JUST SPEAK FOR MIAMI-DADE
COUNTY, WHERE I’M FROM.
THE CRIMINAL COURTHOUSE IS IN A SEPARATE BUILDING IN SOME CASES
FROM COUNTY COURTS 20-30 MILES
FROM WHERE THIS HAPPENED.
IN THE COUNTY COURTHOUSES, THERE ISN’T A RECORDING DEVICE UNLESS
THERE’S A COURT REPORTER THAT’S
THERE IN THE BUILDING THERE,
THERE ISN’T ONE AVAILABLE NEXT DOOR OR JUST I CAN PULL ONE IN
AS YOUR BRIEF SEEMS TO INDICATE.
THIS CREATES PRACTICAL PROBLEMS,
AND THAT’S IN MIAMI-DADE. I CAN ONLY IMAGINE IN SOME MORE
RURAL COUNTIES WHERE, EVEN
THOUGH THERE IS A CRIMINAL
COURTHOUSE THERE, COURT REPORTERS ARE NOT NECESSARILY
AVAILABLE.
>>I’D SAY THAT’S CONSIDERATION
THE TRIAL JUDGE HAS TO MAKE BEFORE HE OR SHE INSTITUTES
CRIMINAL PROCEEDINGS.
>>ISN’T THAT DIRECTLY CONTRARY
TO WHAT JUSTICE LABARGA READ, WHICH IS TO REMEDY A SITUATION
IMMEDIATELY ON THE SPOT BASED ON
PERSONAL OBSERVATION OF THE
TRIAL COURT JUDGE?>>AND THAT CAN BE DONE BY
REMOVING THE–
>>SO YOU PREFER TO HAVE SOMEONE
IN JAIL INSTEAD, TO HOLD THEM IN JAIL WHILE A COURT REPORTER
COMES RATHER THAN JUST, RATHER
THAN JUST DO THE PROCEEDINGS,
HAVE THE HEARING RIGHT THERE AND THEN GIVE A SENTENCE WHICH MIGHT
NOT INCLUDE JAIL?
>>I WOULDN’T NECESSARILY PREFER
IT BE JAIL, YOU COULD BE GIVEN A NOTICE TO RETURN.
HOWEVER, I WOULD NOTE THAT I
PREFER THE DEFENDANT HAVE A
TRANSCRIPT RATHER THAN HAVING NO TRANSCRIPT AT ALL.
AND BACK TO YOUR QUESTION
WHETHER OR NOT THE JUDGE HAD
GOWN THROUGH THE PROCEDURAL HISTORY ON THE RECORD, THAT
WOULD BE SUFFICIENT.
BOTH THE UNITED STATES SUPREME
COURT AND THIS COURT HAVE REPEATEDLY SAID IS IT A CRIME
AND UNIQUELY– ON THE
PROCEDURAL HISTORY, PLANK WAS
ASKED THE ISSUE OF WHETHER OR NOT A DEFENDANT–
[INAUDIBLE]
IS ENTITLED TO COUNSEL WAS NOT A
MAJORITY OPINION. IT WAS ACTUALLY 3-3, AND CHIEF
JUSTICE CANADY CONCURRED IN
RESULT ONLY.
BUT THIS COURT DISCUSSED BLOOM. IT WAS THE UNITED STATES SUPREME
COURT.
THEY GO THROUGH THE HISTORY
DATING BACK TO THE JUDICIARY ACT OF 1789 ABOUT HOW ABUSES DID
HAPPEN, AND THAT’S WHY THERE WAS
A CURTAILMENT ON THE CONTEMPT
POWERS. SO HERE WE HAVE A SITUATION, YOU
HAVE A TYPE OF PROCEEDING THAT
IS UNIQUELY LIABLE FOR ABUSE.
WE’RE LETTING THE TRIAL JUDGE NOT ONLY PROSECUTE SOMEONE
SEVERELY WITHOUT THE ASSISTANCE
OF COUNSEL, BUT THEN THE TRIAL
COURT GETS TO MAKE THE RECORD. IF YOU LOOK, THAT IS A PROBLEM
BECAUSE THE TRIAL JUDGE IS
SITTING THERE NOT ONLY AS THE
JUDGE IN A CASE AS THEY USUALLY WOULD, BUT ALSO THE PROSECUTOR,
AND WE HAVE SITUATIONS LIKE THE
PRESENT WHERE, AS JUSTICE LAGOA
POINTED OUT, IF YOU LOOK AT JUST THE– WE HAVE MULTIPLIERS.
ULTIMATELY, I’M NOT HERE
CHALLENGING THE INDIRECT
CRIMINAL CONTEMPT BECAUSE THE MARCH 2ND HEARING DOESN’T SHOW
THE CONTEMPT WAS ACTS THAT WERE
SET FORTH.
IF YOU DON’T HAVE A TRANSCRIPT, YOU DON’T KNOW THAT–
>>I WAS GOING TO SUGGEST
PERHAPS A COMPROMISE.
I WAS GOING TO SUGGEST PERHAPS THE ORDER HERE, WHEN A JUDGE IS
CONTEMPLATING HOLDING SOMEBODY
IN DIRECT CRIMINAL CONTEMPT IN
OPEN COURT, JUDGE IS REQUIRED TO TELL THE PERSON I’M CONSIDERING
HOLDING YOU IN CONTEMPT.
I AM NOW GIVING YOU AN
OPPORTUNITY TO PRESENT ANY MITIGATION YOU MAY HAVE BEFORE I
MAKE A DECISION.
SOMETHING LIKE THAT, THE JUDGE
IS SUPPOSED TO SAY. ONCE THE DECISION IS MADE TO
HOLD SOMEBODY IN CONTEMPT, THE
JUDGE IS REQUIRE TO DO A
JUDGMENT, AN ORDER. I WOULD THINK PERHAPS IF YOU’RE
GOING TO HOLD SOMEBODY IN
CONTEMPT AND YOU THROW THEM IN
JAIL FOR 15 DAYS, I WOULD PROBABLY GO TO MY LAPTOP.
BUT NEVERTHELESS, HOW ABOUT IF
THE ORDER ACTUALLY SAYS IN
MITIGATION, THE DEFENDANT PRESENTED THE FOLLOWING: A, B,
C, D.
AND AFTER DUE CONSIDERATION DUE
TO THOSE MITIGATION FACTORS, I FIND THAT THEY DO NOT OUTWEIGH
THE BEHAVIOR PRESENTED IN COURT
AND, THEREFORE, HOLDING HER IN
CONTEMPT OR HIM IN CONTEMPT. I GUESS YOU WOULD NOT LIKE THAT
BECAUSE YOU SAID THAT–
[LAUGHTER]
BECAUSE THE JUDGE IS NECESSARILY INVOLVED IN THE PROSECUTION AND
THE SENTENCING.
>>AND THAT’S GOING TO BE MY
BASIC RESPONSE TO THAT. IN THE DECISION OF OLIVER, THE
UNITED STATES SUPREME COURT SAID
THAT CONTEMPT IS NOT TO BE
CONSIDERED AS AN UNLIMITED ABANDONMENT TO THE BASIC DUE
PROCESS PROCEDURAL SAFEGUARDS.
AND THE UNITED STATES SUPREME
COURT HAS SAID FOR DECADES THAT DEFENDANTS, CRIMINAL DEFENDANTS
ARE ENTITLED TO A RECORD
SUFFICIENT FOR APPELLATE REVIEW
WHETHER THEY’RE INDIGENT OR NOT, AND–
>>THERE’S A PREJUDICE COMPONENT
TO THAT, ISN’T THERE?
>>THERE IS A PREJUDICE COMPONENT.
>>SO HAVE YOU ALLEGED ANY
PREJUDICE?
>>YOU HAVE A PERSON WHO WAS PRO SE, WHO WAS BEING– WE HAVE NO
DECISION–
>>SO THE ANSWER IS NO.
>>THE ANSWER IS, NO.>>YOU CAN’T ASK YOUR CLIENT
WERE YOU ASKED MITIGATION?
>>I HAVE ASKED MY CLIENT, BUT
SHE CAN’T RELAY THAT IN A PARTICULAR WAY.
COURTS HAVE HELD THAT EPITOMIZES
DUE PROCESS.
SO THERE HAS TO BE SCRUPULOUS COMPLIANCE.
AND THIS ISN’T A SITUATION–
>>SO WHAT’S YOUR ANSWER TO THE
STATE’S POINT THOUGH ABOUT YOUR ABILITY UNDER THE APPELLATE
RULES TO INCLUDE SOMETHING IN
THE RECORD THAT’S EVEN, IF
NECESSARY IN THE ABSENCE OF A TRANSCRIPT, SOMETHING AS SIMPLE
AS THE PARTY’S RECOLLECTION?
IT SEEMS LIKE UNLESS WE’RE GOING
TO HAVE EVERYTHING TRANSCRIBED, WE’RE NOT– THE THING THAT’S
THE ACTUAL CAUSE FOR THE
CONTEMPT WOULD HAPPEN
UNTRANSCRIBED. AND SO THE ONLY THING THAT YOU
COULD REALLY GET IF YOU WERE
GOING TO HAVE A TRANSCRIPT ONCE
THE JUDGE THINKS THAT THERE’S AN ISSUE IS SOMETHING THAT WOULD
SHOW COMPLIANCE WITH 3.830.
SO IT SEEMS LIKE THIS RECORD
COULD HAVE EASILY INCLUDING SOMETHING FROM YOUR CLIENT
SAYING TO THE BEST OF MY
RECOLLECTION, I WASN’T GIVEN THE
OPPORTUNITY TO DO MITIGATION, X, Y, AND Z, AND WE WOULD HAVE
SOMETHING TO REVIEW ON APPEAL.
>>THE PROBLEM IS, YOUR HONOR,
THE BURDEN OF WRITING A RECORD IN THESE TYPES OF CASES HAS TO
REST WITH THE TRIAL COURT
BECAUSE THE TRIAL COURT WHICH
SEEKS TO– [INAUDIBLE]
THE PROBLEM–
>>I UNDERSTAND, BUT MAYBE AS
TO– I’M NOT SAYING, OBVIOUSLY, IF YOUR CLIENT WANTED TO SAY
SOMETHING ABOUT THE UNDERLYING
CONDUCT, THAT’S ONE THING.
BUT CERTAINLY, IT’S NOT ASKING TOO MUCH FOR THERE AT LEAST TO
BE A RECORD SAYING THAT I WAS
DEPRIVED OF EVEN THE OPPORTUNITY
TO DO X, Y AND Z, RIGHT?>>THE PROBLEM IS CONTEMPT CAN
COME OUT OF ANY TYPE OF
PROCEEDING.
A PERSONAL MAY NOT BE ENTITLED TO COUNSEL, MAY NOT HAVE
COUNSEL, AND THEY’RE GOING TO BE
THROWN IN JAIL FOR, IN THIS
CASE, 15 DAYS, WE HAVE NO IDEA BECAUSE THERE’S NO VETTING
WHETHER THIS PERSON WOULD BE
CAPABLE OF DEFENDING THEMSELVES,
AND THEY’RE SUPPOSED TO KNOW PINPOINT ACCURACY ABOUT THE
RECORD–
>>DOESN’T THERE HAVE TO BE AT
LEAST AN ATTEMPT TO RECONSTRUCT? DIDN’T WE SAY IT COULD NOT BE
RECONSTRUCTED WHICH IS WHY WE
REVERSED?
>>BUT THE PROBLEM IN THIS–>>AM I RIGHT?
>>THAT IS WHAT CASE LAW STATES
IN A TYPICAL CRIMINAL
PROCEEDING, BUT THIS IS NOT A TYPICAL PROCEEDING, AND, YOU
KNOW, FOR EXAMPLE–
>>THE PROBLEM IS YOU SEEM TO
WANT TO HAVE IT BOTH WAYS, TREAT IT THE SAME AS A REGULAR
CRIMINAL PROCEEDING AND YET YOU
DON’T.
>>I WANT TO SAY THE DEFENDANT STILL HAS DUE PROCESS RIGHTS,
BUT I ALSO SAY IT’S A DIFFERENT
PROCEEDING BECAUSE THE JUDGE IS
A PROSECUTOR–>>WELL, LET ME ASK YOU THIS.
AT SOME POINT THE COUNSEL WAS
APPOINTED, SO COULDN’T YOU ASK
TO RELINQUISH TO RECONSTRUCT THE RECORD?
>>BUT THE COUNSEL WAS APPOINTED
AFTER SHE’D ALREADY BEEN
CONVICTED AND SENTENCED.>>ARE YOU ENTITLED TO RECREATE
THE RECORD WITHOUT PERMISSION
FROM THE APPELLATE COURT?
>>WELL, APPARENTLY ACCORDING TO THE FOURTH DISTRICT COURT OF
APPEALS’ RECENT DECISION IN
TERRY, YOU CAN RECONSTRUCT THE
RECORD. HOWEVER, THE PROBLEM IS
STIPULATION OF THE PARTIES DON’T
REQUIRE IN A DIRECT CRIMINAL
CONTEMPT PROCEEDING BECAUSE STIPULATION OF THE PARTIES
REQUIRES STIPULATION OF THE
PARTIES.
WHEN YOU HAVE A DIRECT CRIMINAL CONTEMPT PROCEEDING, THERE IS NO
OTHER PARTY OTHER THAN THE
DEFENDANT AND THE YOUNG.
SAME THING APPLIES WITH RECONSTRUCTION.
THE TRIAL JUDGE, HOWEVER, IS THE
PROSECUTOR.
FIRST OF ALL, YOU CAN’T SERVE YOUR FACTS ON A DIFFERENT PARTY
BECAUSE THERE IS NO OTHER PARTY.
AND THEN YOU HAVE THE JUDGE WHO
WAS THE ONE THAT DECIDED TO INSTITUTE THE CHARGES IS THE ONE
WHO GETS TO SETTLE AND APPROVE.
THE EASIER THING TO DO IS JUST
DO IT AT THE GET GO. AND I DO WANT TO POINT OUT JUST
FROM A PRACTICAL STANDPOINT I’M
NOT ASKING THIS COURT TO REVERSE
THE TWO WEEK TRIAL OR MONTH TRIAL.
PROCEEDINGS IN THE DIRECT
CRIMINAL CONTEMPT ARE RELATIVELY
SHORT. I’M JUST ASKING GO BACK SO THE
TRIAL COURT CAN DO IT RIGHT SO
WE CAN SEE ON THE RECORD OR THAT
DUE PROCESS WAS FOLLOWED. RULE 3.830 IS VERY SPECIFIC.
IT EMBODIES WHAT DUE PROCESS IS
IN A DIRECT CRIMINAL CONTEMPT
PROCEEDING, AND ANY ERROR IN THERE IS FUNDAMENTAL OR ERROR.
AND THE PROBLEM IS YOU’RE
DEPRIVING A PERSON OF COUNSEL TO
BE ABLE TO MAKE A REVIEW, AND IT GIVES SOMEONE DUE PROCESS.
I SEE I’M IN MY REBUTTAL TIME,
SO I’LL RESERVE THE REMAINDER OF
MY TIME FOR REBUTTAL.>>THANK YOU.
>>GOOD MORNING.
MY NAME IS HEIDI BETTENDORF, AND
I’M APPEARING ON BEHALF OF THE STATE OF FLORIDA.
>>COUNSEL, LET ME ASK YOU A
QUESTION REGARDING THE JUNE
HEARING. IT WAS SCHEDULED AS AN INDIRECT
CRIMINAL CONTEMPT PROCEEDING,
CORRECT?
>>IT APPEARS THAT’S CORRECT, YES.
>>SO PURSUANT TO RULE 3.840,
THERE ARE CERTAIN REQUIREMENTS
THAT HAVE TO BE FOLLOWED, CORRECT?
>>THAT’S CORRECT.
>>SO HOW CAN THIS APPELLATE
COURT OR THE APPELLATE COURT BELOW, HOW CAN WE INSURE THAT
THE TRIAL COURT COMPLIED WITH
THE REQUIREMENTS OF THAT RULE IF
THERE’S NO TRANSCRIPT HERE?>>WE’RE HERE ON A DIRECT
CRIMINAL CONTEMPT–
>>RIGHT.
BUT THE HEARING, THE HEARING FOR THAT DATE WAS NOTICED AS AN
INDIRECT CRIMINAL CONTEMPT
PROCEEDING, CORRECT?
>>YES, THAT’S CORRECT.>>AND THERE IS NO TRANSCRIPT OF
THAT PROCEEDING.
>>THAT’S ALSO CORRECT.
>>ALL RIGHT. AND IS THAT NOT ONE OF THE
REQUIREMENTS THAT YOU’RE
SUPPOSED TO HAVE FOR THAT
KIND OF PROCEEDING?>>THAT’S ALSO CORRECT.
PROCEEDING UNDER 3.840.
>>RIGHT.
WELL, THAT’S WHAT THE HEARING WAS NOTICED AS, CORRECT?
>>THAT’S WHAT THE HEARING WAS
NOTICED AS.
>>IT WAS A 30-MINUTE HEARING.>>YES.
>>SO UNDER 3.830, THAT’S ALSO
SOMETHING THAT NEEDS TO BE
SCRUPULOUSLY FOLLOWED, CORRECT?>>THAT’S ALSO CORRECT.
>>HOW CAN THIS COURT INSURE
THAT A DEFENDANT, THAT THE
REQUIREMENTS THE PROCEDURAL REQUIREMENTS OF THAT RULE ARE
MET, AND HOW CAN WE INSURE THAT
A DEFENDANT IS GIVEN AN
OPPORTUNITY TO PRESENT EVIDENCE OF MITIGATING OR EXCUSING
CIRCUMSTANCES WITHOUT ANY KIND
OF REVIEW, APPELLATE REVIEW IN
TERMS OF EITHER A RECORDING OR A TRANSCRIPT?
>>WELL, THE TRIAL HAS ALWAYS
BEEN THAT– THE RULE HAS ALWAYS
BEEN THAT UNDER APPELLATE RULE 9.200B4 THAT THE PARTIES CAN
RECONSTRUCT THE RECORD WITH,
WHEN THERE HAS BEEN AN ABSENCE
OF A TRANSCRIPT. IF YOU WERE TO STATE AND FOLLOW
THE RULE THAT THAT BECAUSE THIS
IS A CRIMINAL PROCEEDING, THEN
IT ALWAYS MUST BE REVERSED FOR LACK OF A TRANSCRIPT, THAT WILL
HAVE WIDESPREAD EFFECT ON ALL
CRIMINAL–
>>WELL, WHY SHOULD IT NOT? I MEAN, IF YOU’RE THROWING
SOMEONE IN JAIL AND YOU’RE
INCARCERATING THEM, WHY SHOULD
THERE NOT BE A MOMENT WHERE WE STOP AND– UNDER THE RULES
RIGHT NOW, 3.720, A SENTENCING
COURT, AND IN THIS CASE IT WOULD
BE A SENTENCING COURT BECAUSE SENTENCE SHALL BE PRONOUNCED IN
OPEN COURT, CORRECT?
>>YES.
>>SHALL INSURE THE RECORD OF THE ENTIRE SENTENCING PROCEEDING
IS MADE AND PRESERVED IN SUCH A
MANNER.
THAT DID NOT OCCUR HERE, CORRECT?
>>THAT’S ALSO CORRECT.
BUT, YOUR HONOR, THIS COURT’S
RECENT OPINION IN PLANK STATED THAT THE MORE SPECIFIC RULE
CONTROLS OVER THE MORE GENERAL
RULE.
AND BECAUSE 3.830 SPECIFICALLY DEALS WITH SUMMARY CRIMINAL
CONTEMPT, THE STATE WOULD ARGUE
THAT 3.380 TAKES PRECEDENCE OVER
THE TRANSCRIPT.>>WELL, HERE IT JUST SAYS
SENTENCE SHALL BE PRONOUNCED IN
OPEN COURT.
HOW DOES THAT CONVICT WITH IT HAS TO BE MADE IN SUCH A MANNER
THAT IT CAN BE TRANSCRIBED AS
NEEDED?
>>BECAUSE 3.830 DOES NOT NECESSARILY REQUIRE THAT THERE
BE A TRANSCRIPT.
IT’S A SUMMARY PROCEEDING–
>>I UNDERSTAND THAT. BUT THE PROBLEM THAT I HAVE HERE
IS THAT THAT HEARING, ASSUMING
IT TOOK PLACE, THAT HEARING WAS
AN INDIRECT CRIMINAL PROCEEDING HEARING, CORRECT?
IT WAS UNDER 3.840, NOT 3.830.
>>WELL, WE CAN ASSUME THAT, BUT
I DON’T KNOW THAT’S NECESSARILY CORRECT, BECAUSE WE DON’T HAVE A
TRANSCRIPT OF THAT HEARING.
>>WELL, YOU HAVE A, YOU HAVE A
NOTICE OF HEARING, AN ORDER TO SHOW CAUSE, CORRECT, FOR THAT
DATE.
>>YES.
>>AND THE ORDER TO SHOW CAUSE WAS UNDER 3.840, NOT 3.830.
>>BUT AN ORDER TO SHOW CAUSE
NOT REQUIRED UNDER–
>>I UNDERSTAND THAT, COUNSEL. BUT THE POINT IN THIS CASE, IT’S
EITHER A YES OR A NO.
THE ORDER TO SHOW CAUSE THAT
WENT OUT WAS SOLELY FOR THE ALLEGED MISREPRESENTATIONS THAT
WERE MADE AT A MARCH 2ND
HEARING.
>>YES, THAT IS CORRECT.>>AND THAT WAS SUPPOSED TO BE
AN INDIRECT CRIMINAL PROCEEDING.
>>YES.
THAT IS WHAT THE NOTICE STATES.>>OKAY.
AND THERE IS NO RECORDING OF
WHAT HAPPENED DURING THAT
TRANSCRIPT.>>THAT IS ALSO CORRECT.
>>EVEN THOUGH THERE SHOULD HAVE
BEEN BECAUSE IT WAS NOTICED AS A
3.840.>>THAT’S ALSO CORRECT.
>>OKAY.
SO BUT IN THE MIDDLE OF THAT
3.840 HEARING– ASSUMING IT HAPPENED, BECAUSE I DON’T KNOW.
BECAUSE, FRANKLY, CAN YOU TELL
ME WHEN YOU LOOK AT THIS ORDER
THAT IT SAYS THAT THIS HAPPENED ON THAT DATE?
>>NO.
BUT I CAN TELL LOOKING AT THAT
ORDER THAT THE BEHAVIOR HAPPENED ON MARCH 2ND AND MARCH 17TH
BASED ON THE TRANSCRIPTS OF
THOSE HEARINGS THAT WE HAVE.
>>ARE YOU ALLEGING THAT BEHAVIOR HAPPENED ON MARCH 2ND
WHEN YOU CAN READ THE TRANSCRIPT
AND IT SHOWS IT DID NOT OCCUR?
>>I AM ARGUING THAT THE BEHAVIOR THAT CONSTITUTES THE
DIRECT CRIMINAL CONTEMPT
HAPPENED AT BOTH THE MARCH 2ND
AND MARCH 17TH HEARINGS. THE FOURTH DCA FOUND THAT THE
BEHAVIOR THAT COMPRISES THE
INDIRECT CRIMINAL CONTEMPT DID
NOT HAPPEN AT THOSE HEARINGS.>>AND WHAT WAS THE DIRECT
BEHAVIOR THAT OCCURRED?
WHERE DO YOU SAY THAT HAPPENED?
ARE YOU SAYING IT HAPPENED AT MARCH 17TH?
>>NO.
I’M SAYING ON MARCH 2ND
PETITIONER MADE OUTBURSTS AND CONTINUED TO MAKE OUTBURSTS
AFTER BEING WARNED AND ALSO
HECKLED ONE OF THE ATTORNEYS.
IT’S CLEARLY SHOWN BY THE TRANSCRIPT.
>>IF THAT WAS GOING TO BE
HANDLED AS DIRECT CRIMINAL
CONTEMPT, IT WOULD HAVE HAD TO HAVE BEEN DONE ON MARCH 2ND.
>>SHE WAS REMOVED FROM THE
COURTROOM ON MARCH 2ND.
>>BUT UNDER OUR RULES, YOU HAVE TWO OPTIONS.
ONE, YOU DEAL WITH IT
IMMEDIATELY AS DIRECT, OR YOU
NOTICE IT AND HANDLE IT AS INDIRECT.
YOU CAN’T, YOU CAN’T SET OFF AND
DECIDE TO DEAL WITH SOMETHING
WEEKS LATER AS DIRECT CRIMINAL CONTEMPT.
YOU HAVE TO DEAL WITH THAT
IMMEDIATELY, CORRECT?
OR AM I WRONG ABOUT THAT?>>WELL, YOUR HONOR, THAT’S A
GRAY AREA.
WE HAVE TWO RULE, 3.830, THAT
DEALS WITH DIRECT AND CONTEMPLATES A SUMMARY
PROCEDURE, AND IT DOESN’T STATE
HOW LONG THERE MUST BE A BREAK
BETWEEN THE BEHAVIOR AND THE ENTRY OF THE SENTENCING ORDER.
AND THEN WE HAVE–
>>I’VE ALWAYS UNDERSTOOD IT TO
MEAN IMMEDIATELY.>>RIGHT.
>>THIS IS MY CONCERN, COUNSEL.
MY CONCERN IS, IS THAT WHEN I
LOOK AT THIS ORDER, OKAY, WHAT IS ALLEGED TO BE DIRECT CONTEMPT
IS HER NOT ANSWERING QUESTIONS.
THERE IS A HEARING ON MARCH 17TH
WHERE THE TRIAL JUDGE SAYS THAT SHE’S NOT ANSWERING QUESTIONS.
THAT’S MARCH 17TH.
THAT CANNOT BE DIRECT CRIMINAL
CONTEMPT. AND THIS ORDER DOES NOT TELL ME
WHEN THIS DIRECT CRIMINAL
CONTEMPT OCCURRED.
AND IN ORDER FOR IT TO BE DIRECT CRIMINAL CONTEMPT, IT HAS TO
HAVE HAPPENED ON JUNE 17TH.
>>YOUR HONOR, I UNDERSTAND YOUR
CONCERN THERE IS EVIDENCE IN THIS RECORD THAT BEHAVIOR WAS
ENGAGED IN ON MARCH 2ND AND THAT
THE ORDER WAS WITH NOT ENTERED
UNTIL THREE MONTHS LATER.>>OKAY.
[LAUGHTER]
>>I CONCEDE THAT TO YOU.
>>SO THAT’S THE STATE– I JUST WANT TO BE CLEAR, THAT’S THE
STATE’S POSITION, THAT THE
BEHAVIOR WE’RE TALKING ABOUT
HERE OCCURRED IN THE MARCH HEARINGS, ONE OR THE OTHER, NOT
IN JUNE.
>>YES.
THAT’S THE STATE’S CONTENTION. [INAUDIBLE CONVERSATIONS]
>>I THINK YOU MADE IT AN EASIER
CASE.
>>FOR MYSELF OR MY OPPONENT?>>THAT’S YET TO BE SEEN.
[LAUGHTER]
>>HASN’T THIS WHOLE THING BEEN
LITIGATED AS IF THE DIRECT CONTEMPT AROSE OUT OF SOMETHING
THAT HAPPENED IN JUNE?
WE’VE BEEN TALKING ABOUT
THERE NOT BEING TRANSCRIPTED WHEN THERE ARE TRANSCRIPTS FOR
THE MARCH STUFF.
>>WELL, MY CLIENT HAS NEVER
ARGUED THAT HER BEHAVIOR DID NOT CONSTITUTE THE BEHAVIOR.
SO AS FAR AS YOUR POINT, JUSTICE
LAGOA, ABOUT WHETHER THE
BEHAVIOR OUTLINED IN THE JUDGE’S ORDER CONSTITUTES DIRECT
CRIMINAL CONTEMPT, THAT’S BEEN
WAIVED BY MY–
>>I DON’T MAKE POINTS. I’M JUST ASKING QUESTIONS
BECAUSE I AM CONCERNED THAT,
FRANKLY, A TRIAL COURT JUDGE AND
AN ATTORNEY WHO WAS SUPPOSED TO BE AN OFFICER OF THE COURT FILED
A PETITION AND AN ORDER TO SHOW
CAUSE ON SOMEONE WHEN THEY HAD A
HEARING TRANSCRIPT THAT SHOWED THAT, IN FACT, THERE WAS NO CON
THEM ARABS BEHAVIOR, THAT THE
ALLEGED MISREPRESENTATION THAT
THEY ACCUSE THIS WOMAN OF DOING DID NOT OCCUR AND, IN FACT,
FRANKLY, IF ANYTHING, THEY’RE
THE ONES THAT SHOULD BE REPORTED
TO THE BAR. BECAUSE I FIND IT, FRANKLY,
VERY, VERY UPSETTING THAT
SOMEONE CAN BE THROWN IN JAIL
WHEN THEY HAVE A TRANSCRIPT THAT SHOWS, IN FACT, IT DID NOT
OCCUR.
>>JUSTICE LAGOA, I CAN
UNDERSTAND YOUR OUTRAGE. HOWEVER, THERE IS PART OF THE
BEHAVIOR CONTAINED IN THE ORDER
THAT DID OCCUR.
>>UNFORTUNATELY, THE ORDER TO SHOW CAUSE ONLY TALKS ABOUT THE
MISREPRESENTATIONS MADE ON MARCH
2ND REGARDING WHETHER OR NOT
THEY HAD VACATED THE PREMISES. THAT IS IT.
AND YOU HAVE TO GIVE NOTICE,
CORRECT, UNDER 3.840 AS TO WHAT
YOU’RE BEING ACCUSED OF.>>YES, THAT IS CORRECT.
>>RIGHT.
AND THE ONLY ACCUSATION IS THAT,
MISREPRESENTATION.>>NO.
THE ACCUSATION ALSO INCLUDES
THAT SHE WAS DISRUPTIVE IN
THE–>>THAT IS NOT IN THE ORDER TO
SHOW CAUSE, COUNSEL.
>>I’M SORRY, I MISUNDERSTOOD
YOUR QUESTION. I THOUGHT YOU WERE TALKING ABOUT
THE ORDER FINDING HER IN
CONTEMPT.
I’M SORRY, JUSTICE MUNIZ, YOU ASKED ME A QUESTION, AND DO YOU
RECALL WHAT IT WAS?
>>I THINK WE’RE KIND OF SAYING
THE SAME THING. THE ORDER TO SHOW CAUSE SAID THE
SPECIFIC PURPOSE OF THAT JUNE
HEARING WAS GOING TO BE TALKING
ABOUT THE ALLEGED LYING ABOUT WHETHER SHE WAS LIVING IN THE
HOUSE.
THERE WASN’T ANYTHING ABOUT HER
ALLEGED BAD BEHAVIOR IN MARCH. THE WAY THIS WAS BRIEFED AND
LITIGATED, I THINK ALL OF US
ASSUME THAT WHATEVER THE DIRECT
CONTEMPT BEHAVIOR WAS OCCURRED IN JUNE AND THAT PART OF THE
PROBLEM WAS WE DIDN’T KNOW WHAT
THE BEHAVIOR WAS, AND WE DIDN’T
KNOW WHETHER THE PROCEDURAL, YOU KNOW, THE 3.830 PROCEDURAL
THINGS WERE FOLLOWED.
AND NOW YOU’RE SAYING THAT THE
DIRECT CONTEMPT WAS ACTUALLY BASED ON WHAT HAPPENED IN MARCH
WHEN THIS WAS A TRANSCRIPT,
WHICH TO ME AT LEAST, THAT’S
NEWS. I MEAN, I DIDN’T– THE WAY
EVERYTHING HAS BEEN PUT TO US, I
DIDN’T THINK THAT THAT WAS THE
CASE.>>WELL, YOUR HONOR, BASED ON
THE WAY MY OPPONENT JUST STOOD
UP HERE AND ARGUED THE CASE, IT
DOES NOT APPEAR THAT THE ATTORNEY LISTED IN THE ORDER,
THE DIRECT CRIMINAL CONTEMPT
PORTION OF THE ORDER,
MR. MANSERRIE, WAS AT THE JUNE 17TH HEARING.
HE JUST ARGUED TO YOU THAT THERE
WAS TECHNOLOGY TO JUDGE AND THE
CONTEMNORS AT THE HEARING AND, THUS, HE WAS NOT ABLE TO
FAIRLY RECONSTRUCT THE RECORD
BECAUSE THE JUDGE AND THE–
[INAUDIBLE]>>THE DCA OPINION IS REALLY
CLEAR.
I SAYS THE MARCH HEARING THERE
WAS A TRANSCRIPT, MARCH HEARING, THERE’S A TRANSCRIPT, AND THEN
WE GET TO THE INDIRECT CRIMINAL
CONTEMPT HEARING, THERE WAS NO
COURT REPORTER, THEREFORE, THERE WAS NO TRANSCRIPT.
AND SO IT’S A REVERSAL ON THE
INDIRECT.
BUT, AND THEN IT GETS DOWN TO THE DIRECT CRIMINAL CONTEMPT AND
SAID BECAUSE THERE’S NO
TRANSCRIPT, THERE WAS NO HEARING
AVAILABLE. IF THAT MEANS IT WAS– IT LOOKS
LIKE TO THE FIFTH, TO THE FOURTH
IT WAS ARGUED AS IF THAT WAS THE
PROBLEM. AND THAT’S THE WHOLE CONFLICT
ISSUE.
IT’S BASED ON THE ASSUMPTION
THAT THE DIRECT CRIMINAL CONTEMPT OCCURRED AT THE HEARING
ON THE INDIRECT CRIMINAL
CONTEMPT MATTER WHERE THERE WAS
NO COURT REPORTER WE’RE HERE ON A CONFLICT THAT ASSUMES THE
DIRECT CRIMINAL CONTEMPT
HAPPENED.
THAT’S HOW THE FOURTH DCA DECIDED THE ISSUE BY SAYING
THERE DIDN’T HAVE TO BE A COURT
REPORTER AT THAT HEARING.
IT MAKES– SO, I MEAN, IT SOUNDS LIKE WE’RE BEING– THE
WHOLE CONFLICT ISSUE IS BASED ON
A DIFFERENT UNDERSTANDING THAN
THE WAY YOU’RE PRESENTING THIS.>>WELL, YOU CAN ASK MY OPPONENT
WHEN HE STANDS BACK UP HERE FOR
REBUTTAL, BUT THE STATE HAS
ALWAYS PRESUMED THAT THE RULE 3.830, CERTAIN ELEMENTS OF RULE
3.830 WERE MET IN THE FIRST TWO
HEARINGS.
HOWEVER, THE REST OF THE, THE OTHER– THAT THERE WERE THREE
COMPONENTS OF RULE 3.830 THAT
WOULD BE CONTAINED IN THE
SENTENCING HEARING–>>THEN THE ISSUE OF THE FOURTH
SHOULD HAVE BEEN CAN YOU WAIT
THAT LONG TO ENTER AN ORDER
AFTER THE DIRECT CRIMINAL CONTEMPT PROCEEDINGS, AND THE
ISSUE WOULD BE CLEARLY BE A
REVERSAL BECAUSE THE TRANSCRIPT
OF THE MARCH HEARINGS DOES NOT INDICATE THAT THE TRIAL JUDGE
GAVE, HAD A SUMMARY PROCEEDING.
THERE WAS NO OPPORTUNITY TO
OFFER MITIGATION, THERE WAS NOTHING.
I MEAN, IF THE UNDERSTANDING WAS
THAT THAT WAS A SUMMARY
PROCEEDING AND IT WAS JUST REFLECTED LATER, THEN I THINK
THE FOURTH WOULD HAVE REVERSED,
CLEARLY.
BECAUSE THE LAW’S SUFFICIENTLY CLEAR AND UNCONTESTED THAT YOU
HAVE TO OFFER AN OPPORTUNITY FOR
MITIGATION DURING THE HEARING.
IT JUST DOESN’T MAKE SENSE THAT YOU’RE NOW SAYING–
>>JUSTICE LAWSON, I BELIEVE
THAT YOU’RE COMPLETELY CORRECT
THAT IT SHOULD HAVE BEEN ARGUED TO THE FOURTH DCA IF MY OPPONENT
WAS ARGUING THAT TOO LONG OF A
PERIOD OF TIME OCCURRED BETWEEN
THE MARCH HEARINGS AND THE JUNE HEARING, EXCEPT THAT MY OPPONENT
HAS NEVER ARGUED THAT AND,
THEREFORE, THAT ISSUE HAS BEEN
WAIVED. AS TO WHETHER THIS WOULD REALLY
QUALIFY AS A SUMMARY PROCEEDING
OR WHETHER THIS SHOULD HAVE BEEN
CONDUCTED UNDER RULE 3.840–>>NOW YOU HAVE– JUST TO
CLARIFY, BECAUSE MY HEAD’S
SPINNING RIGHT NOW–
[LAUGHTER] AND IT USUALLY DOESN’T SPIN, BUT
IT’S SPINNING.
THERE WERE TWO HEARINGS, RIGHT?
>>YES, THERE WERE.>>THERE WAS THE ONE THAT SHE
WAS NOTICED TO COME TO, CRIMINAL
CONTEMPT HEARING, CORRECT?
>>I’M SORRY, YOUR HONOR. THERE WERE THREE HEARINGS.
>>NOW YOU’VE REALLY GOT ME
SPINNING.
[LAUGHTER] LET’S JUST STICK TO THE FIRST
TWO, OKAY?
THERE’S THE ONE WHERE SHE WAS
NOTICED TO COME TO, THE INDIRECT CRIMINAL CONTEMPT PROCEEDING, AM
I CORRECT?
>>THAT WOULD BE THE THIRD
HEARING.>>THAT’S THE THIRD HEARING.
>>THAT’S THE THIRD HEARING,
YES, SIR.
>>SHE HAD TWO HEARINGS. THERE’S A MARCH 2ND HEARING–
>>YES.
>>SO WHICH HEARING IS THE
DIRECT CONTEMPT APPLIED TO?>>THERE’S A MARCH 2ND HEARING
WHERE SHE CLEARLY ENGAGED
IN BEHAVIOR AND WAS REMOVED FROM
THE COURTROOM.>>BUT THERE WAS NO SUMMARY
PROCEEDING AT THAT HEARING.
WE KNOW THAT BECAUSE WE HAVE A
TRANSCRIPTION.>>THAT’S CORRECT.
>>AND NONE EITHER ON MARCH
17TH.
AND THAT’S MY CONCERN BECAUSE THE ORDER ON APPEAL, WHEN I READ
THE MARCH 17TH HEARING, IT
ASSUMED TO ME THAT WHAT THIS IS
TALKING ABOUT IS WHAT HAPPENED ON MARCH 17TH.
WHERE SHE DIDN’T ANSWER
QUESTIONS, ALTHOUGH SHE WAS
TRYING TO ANSWER QUESTIONS.>>BUT THE CIRCUS LIKE
ATMOSPHERE AND WHERE SHE WAS
TALKING BACK TO THE ATTORNEY
HAPPENED IN THE MARCH 2ND–>>I UNDERSTAND THAT.
I UNDERSTAND THAT, BUT THAT’S
WHY I ASKED–
>>THAT’S NOT THE ONE THAT SHE WAS HELD IN DIRECT CONTEMPT FOR.
>>NO.
>>IT’S IN THE FACTUAL
STATEMENT–>>HOW DO WE KNOW THAT HAPPENED
JUST MARCH 2ND?
>>WELL, WE DON’T KNOW THAT IT
SOLELY HAPPENED MARCH 2ND, BUT IT’S CLEAR THAT FROM THE RECORD
THAT WE HAD THAT IT DID HAPPEN
ON MARCH 2ND.
>>BUT HOW DO WE KNOW THAT THAT BEHAVIOR WAS EVER AT ISSUE?
THERE’S NOTHING THAT WOULD LEAD
US TO BELIEVE THAT.
I UNDERSTAND YOU’RE POINTING TO THAT AS SOME RECORD EVIDENCE
THAT SHE WAS ACTING UP, AND IT’S
THERE.
BUT I JUST DON’T UNDERSTAND HOW THAT CONNECTS WITH THIS
SUBSEQUENT ORDER THAT WAS
ISSUED.
>>WELL, YOUR HONOR, THE STATE’S MAIN POINT ON APPEAL WAS AND
STILL IS THAT THE DEFENDANT HAS
NOT DONE WHAT SHE NEEDS TO DO IN
ORDER TO PRESERVE THIS RECORD FOR APPEAL.
THAT THERE WAS– WHILE THERE
WAS NO COURT REPORTER AT THE
PROCEEDING, THE DEFENDANT HAS DONE NOTHING UNDER FLORIDA RULE
OF APPELLATE PROCEDURE IN ORDER
TO–
>>BUT THEN WE GO, WE GO BACK TO MY ORIGINAL QUESTION WHICH IS
THAT HEARING ON JUNE 17TH WAS AN
INDIRECT, WAS AN ORDER TO SHOW
CAUSE UNDER 3.840, AN INDIRECT CRIMINAL CONTEMPT PROCEEDING
WHERE A TRANSCRIPT AND A
REPORTER SHOULD HAVE BEEN.
BECAUSE IT WAS AN ORDER TO SHOW CAUSE FOR INDIRECT CRIMINAL
CONTEMPT.
BECAUSE THAT’S WHAT WAS NOTICED.
>>BUT THAT, FOLLOWING ALONG WITH WHAT JUSTICE CANADY JUST
ASKED ME, THAT DOES NOT MEAN
THAT THERE WAS– THIS IS NOT
THE SCENARIO THAT I PRESENT TO THE COURT.
HOWEVER, IT DOES NOT MEAN THERE
WAS NO DIRECT BEHAVIOR THAT
WOULD FALL UNDER RULE 3.830 COMMITTED AT THE JUNE HEARING.
WE HAVE NO WAY OF KNOWING EVEN
THOUGH IT WAS AN INDIRECT
CRIMINAL CONTEMPT HEARING, WE HAVE NO WAY OF KNOWING WHETHER
THERE WAS DIRECT CRIMINAL
CONTEMPT ENGAGED IN BECAUSE THIS
COURT AND THE PARTIES HAVEN’T BEEN PROVIDED WITH A
TRANSCRIPT–
>>BUT THEN WHY, THEN IT GOES
BACK TO JUSTICE LABARGA’S QUESTION WHICH IS WHY SHOULD
THERE NOT BE A REQUIREMENT IN A
CASE– LET’S TAKE OUT THE
INDIRECT CRIMINAL CONTEMPT, THE ORDER TO SHOW CAUSE.
WHY SHOULD THERE NOT BE A
REQUIREMENT UNDER THE RULE THAT
A TRIAL COURT JUDGE, IF YOU’RE HOLDING SOMEONE IN DIRECT
CRIMINAL CONTEMPT, IN ORDER TO
PRESERVE FOR APPELLATE REVIEW
THE RECORD– I UNDERSTAND THAT NOT EVERYONE HAS THE ABILITY TO
HAVE A RECORDING OR A COURT
REPORTER THERE.
SO WHY SHOULD THERE NOT BE A WRITTEN RECORD, AN ORDER WHERE
YOU GO THROUGH WHAT THE FACTORS
ARE THAT YOU NEED TO DO UNDER
3.830 IN AND YOU ASK WAS THERE MITIGATION, DID THEY PRESENT
MITIGATION, DID YOU ADVISE THEM,
I ADVISED THEM THEY HAD THE
RIGHT TO HAVE MITIGATION, AND I CONSIDERED THE MITIGATION, AND I
FOUND THAT THEY DID NOT WARRANT
ME REVERSING MY, THE FINDINGS OF
CONTEMPT.>>CURRENTLY, THE RULES DO NOT
REQUIRE THAT.
HOWEVER, THESE ARE RULES OF
CRIMINAL PROCEDURE, AND THIS COURT CAN MODIFY THE RULES OF
CRIMINAL PROCEDURE AT ANY TIME.
AND SO, THEREFORE, I WOULD NOT
SAY THAT IT SHOULD NEVER BE REQUIRED IF THIS COURT WERE TO
DETERMINE THAT IT WANTED TO
MODIFY THE RULES IN ORDER TO
CLARIFY HOW LONG A SUMMARY PROCEEDING SHOULD LAST, TO
RETURN TO YOUR QUESTION THAT YOU
ASKED ME, JUSTICE LUCK, OR
WHETHER THERE SHOULD BE CERTAIN ELEMENTS CONTAINED EVEN MORE SO
THAN WHAT IS ALREADY REQUIRED BY
RULE 3.830 AND 3.840.
THIS COURT IS CERTAINLY ABLE TO DO THAT.
AND SO I WOULD NOT SAY THAT
THERE IS ANYTHING PROHIBITING
THAT. IT’S JUST THAT RIGHT NOW IT’S
NOT CONTAINED IN THE RULE.
AND IF I COULD JUST QUICKLY
RETURN TO WHAT JUSTICE LUCK AND JUSTICE LAWSON, THE POINTS THEY
WERE MAKING ABOUT A SUMMARY
PROCEEDING.
THE EFFECT OF A SUMMARY PROCEEDING GOES BACK TO WHAT MY
OPPONENT WAS ARGUING.
IF YOU STOP THE PROCEEDINGS AND
YOU’RE IN A RURAL COUNTY OR A COUNTY THAT IS NOT RECORDING AND
IT TAKES A DAY TO GET A COURT
REPORTER IN ORDER TO TRANSCRIBE
THE SENTENCING WHETHER THE DEFENDANT HAS THE OPPORTUNITY TO
PRESENT IF MITIGATING FACTORS
AND THE SENTENCE IS PRONOUNCED
ON THE RECORD.>>YOU ALSO HAVE THE– THAT’S
ALSO REQUIRED UNDER 3.830 UNDER
DIRECT.
>>YES. THAT’S WHAT I’M SPEAKING ON.
>>OKAY.
>>SO IF YOU ADJOURN, HOW LONG
OF AN ADJOURNMENT? IS IT NO LONGER CONSIDERED A
SUMMARY PROCEEDING, AND THEN IT
BECOMES A PROCEEDING UNDER RULE
3.840 BECAUSE IT’S NO LONGER A SUMMARY PROCEEDING BECAUSE NOW
WE’RE WAITING FOR THE COURT
REPORTER.
AND SO WE– THIS COURT WOULD THEN HAVE TO WALK A FINE LINE.
IS IT ONE DAY, IS IT TWO DAYS
DEPENDING ON WHAT’S GOING ON IN
THE–>>BUT THAT’S NOT– THE
DIFFERENCE BETWEEN 3.830 AND
3.840 IS WHETHER OR NOT IT
HAPPENED IN FRONT OF THE COURT. IF IT’S A DIRECT CRIMINAL
CONTEMPT, IT’S SOMETHING THAT
THE COURT WITNESSED, THE JUDGE
SAW PERSONALLY. IT CAN’T BE SOMETHING THAT A
BAILIFF OUTSIDE THE COURTROOM
SAYS THE DEFENDANT, WHEN HE
WALKED OUT OR THE PLAINTIFF WHEN SHE WALKED OUT, SWORE AT THE
COURT.
NO.
THEN THAT WOULD BE INDIRECT CRIMINAL CONTEMPT.
>>UNDERSTOOD, YOUR HONOR.
EXCEPT THAT THE POINT THAT THE
OTHER TWO JUSTICES WERE MAKING IS THAT UNDER RULE 3.830 FOR
DIRECT CRIMINAL CONTEMPT, IT
PROVIDES FOR A SUMMARY
PROCEEDING. AND I BELIEVE THAT THE POINT
THAT THEY WERE MAKING IS WHEN
YOU HAVE, AS THE STATE IS
ALLEGING ON THE RECORD, THAT THE BEHAVIOR WAS ENGAGED IN ON MARCH
2ND AND 17TH BUT THEN THE ORDER
IS NOT ENTERED AND THE DEFENDANT
PRESUMABLY– ALTHOUGH WE DON’T HAVE A TRANSCRIPT– WAS GIVEN
THE OTHER PROTECTIONS UNDER
3.830, THEN IT IS NO LONGER A
SUMMARY PROCEEDING. AND SO I WOULD ARGUE TO THE
COURT THAT WHEN YOU ARE GOING TO
DISMISS PROCEEDINGS IN ORDER TO
HAVE THEM THEN BE TRANSCRIBED, YOU TAKE IT OUT OF THE REALM OF
A SUMMARY PROCEEDING, AND THEN
EVERY CONTEMPT PROCEEDING
BECOMES AN INDIRECT CRIMINAL– IT SHOULD FOLLOW UNDER RULE
3.840 BECAUSE IT’S NO LONGER A
SUMMARY PROCEEDING.
I SEE THAT I’M OUT OF TIME, IS THAT CORRECT?
>>YOU’RE ABOUT A MINUTE OVER
TIME.
>>OKAY.>>GENEROUS.
SUM UP, PLEASE.
>>YES.
THE STATE– EXCUSE ME FOR ONE SECOND.
THE STATE WOULD SUGGEST THAT
RATHER THAN REVERSE THE TRIAL
COURT’S RULING FOR LACK OF A TRANSCRIPT, IT SHOULD INSTEAD
CONTINUE WITH ITS LINE OF CASE
LAW WHICH HOLDS THAT A CRIMINAL
DEFENDANT MUST, FIRST, ALLEGE A PREJUDICIAL ORDER AND, SECOND,
ATTEMPT TO RECONSTRUCT THE
PROCEEDINGS.
THANK YOU.>>MR. EISENBERG, LET ME JUST
CLARIFY THAT YOUR BRIEF RAISES A
SINGLE ISSUE, AND THAT ISSUE IS
THAT THE JUNE HEARING HAD TO BE– YOU TREAT IT AS A DIRECT
CRIMINAL CONTEMPT HEARING, AND
THAT DIRECT CRIMINAL CONTEMPT
HEARING ON JUNE 17TH HAD TO BE TRANSCRIBED, AND THAT’S THE ERA
THAT YOU’RE SEEKING–
>>IT BEGAN AS AN INDIRECT
CRIMINAL CONTEMPT PROCEEDING AND AT SOME POINT BECAME DIRECT.
IT’S CONTRARY TO REASON THAT WE
HAVE MARCH 2ND AND MARCH 17TH
HEARINGS WHICH WE HAVE TRANSCRIBED, AT NO POINT DOES
THE TRIAL JUDGE SAY TESTIFIES
GOING TO HOLD HER IN DIRECT
CRIMINAL CONTEMPT. AFTER THE HEARING HE SWEARS
AN ORDER TO SHOW CAUSE WHICH
SPECIFICALLY SAY THE REASON HE’S
GOING TO HOLD THE DEFENDANT IN CONTEMPT.
IF THE TRIAL JUDGE WAS
CONSIDERING HOLDING HER IN
DIRECT CRIMINAL CONTEMPT BASED ON HER ACTIONS AT THE PRIOR
HEARING, IT SHOULD HAVE STATED.
BUT TO GET TO THE MAIN POINT,
THE FACT THAT WE’RE EVEN HAVING THIS DEBATE IS THE REASON THAT
WE NEED TO HAVE AT LEAST AN
ADEQUATE RECORD OR IN DIRECT
CRIMINAL CONTEMPT PROCEEDINGS. I’D JUST LIKE TO NOTE THAT IN RE
INQUIRY IN PERRY, THIS COURT
SAID THAT IT’S EXTREMELY
IMPORTANT THAT TRIAL JUDGES PROTECT A CONTEMPT DEFENDER’S
DUE PROCESS RIGHTS PARTICULARLY
WHEN IT RESULTS IN THE
IMPRISONMENT OF THE OFFENDER. THE SUPREME COURT– IT GOES TO
THE IRE AND THE CENTER OF THE
COURT.
IT IS, AS I SAID, COMPETENCY OFTEN STRIKES THE MOST
VULNERABLE QUALITIES OF A–
LEGISLATIVE, EXECUTIVE AND
JUDICIAL POWERS– [INAUDIBLE]
THE MOST TYRANNICAL
LICENTIOUSNESS.
THERE ARE SO MANY ISSUES IN THIS CASE RELATED TO THE INDIRECT
CRIMINAL CONTEMPT, AND WITHOUT
AN ADEQUATE RECORD, WITHOUT
ANYTHING IN THE RECORD, WE CANNOT DETERMINE WHETHER THOSE
ERRORS ALSO SEEPED DOWN.
FOR ALL THOSE REASONS, I’D ASK
THIS COURT REVERSE IF THERE’S NO FURTHER QUESTIONS.
>>THANK YOU BOTH FOR YOUR
ARGUMENTS.

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