Cordova v. StateCordova v. State
The defendant-appellant, Victor Cordova, appeals a lower court order finding him guilty of indirect criminal contempt for violating an injunction for protection аgainst domestic violence under
The trial court, based on a petition from Blanca Iris Colon, issued a permanent injunction for protection against Cordova on March 16, 1994. Cordova allegedly violated provisions of the injunction, and on April 21 the trial court issued a rule to show cause why he should not be held in contempt for such violations. Before the bench trial on this matter, the state filed a request, opposed by defense counsel, that the trial court judicially notice the fact that Cordova was served with the injunction he was alleged to have violated.
When the case was called, the court heard argument of counsel аnd, after noting that the issue had been “coming up and coming up” in domestic violence cases, judicially noticed the fact that Cordova had been served with the injunction based, in part, on the stamped return оf service. The court ultimately found Cordova guilty of contempt and sentenced him accordingly.
The central issue presented by this appeal is whether a trial court may judicially notice the fact that a defendant was served with an injunction where he is charged with indirect criminal contempt for violating its provisions. Both parties and the lower court correctly agreed that notice of an injunction is an essеntial element of the charge of violating its provisions. See
In a criminal case, it is fundamental “that the рrosecution must prove every essential element of the crime charged,” Purifoy v. State, 359 So.2d 446, 449 (Fla.1978), by proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Thus, we must look to the effect judicial notice has on the state‘s constitutional burden.
When the evidence code was first enacted in 1976, “section 90.206 provided that during the trial the court shall instruct the jury to accept as a fact a matter of judicial notice.” Charles W. Ehrhardt, Florida Evidence § 206.1 (1996). The Law Revision Council Notes clearly indicated an intent to break with the previous rule. A matter judicially noticed was meant to be binding on thе trier of fact and no evidence disputing or rebutting the matter was to be permitted once it had been so noticed by the judge. See
“In the 1978 amendment to section 90.206 the legislature changed the word `shall’ to `may’ so that thе provision now reads that the judge `may instruct the jury during the trial to accept as a fact a matter judicially noticed.‘” Ehrhardt, supra, § 206.1. Professor Ehrhardt argues that the legislature‘s intent in making such a change is unclear. Id. One interрretation of the change, according to the professor, is that “the court was granted the discretion to determine whether taking judicial notice of a particular fact is conclusive as to that fаct or whether the opposing party can introduce conflicting evidence.” Id. The other interpretation, which Ehrhardt finds preferable, “is that the amendment did not change the conclusive nature of judicial notice, but that the legislature recognized that it might be cumbersome during a trial to repeat the comment to a jury each time a fact is noticed and that the trial judge should have the discretion to determine whether an instruction is necessary.” Id.
Notwithstanding Ehrhardt‘s argument regarding the amendment‘s ambiguity, and his preference for the latter interpretation, the commentary to the 1978 amendment indicates that the former interpretation was the one intended. It provides as follows:
This amendment provides that the trial judge has discretion to determine whether the jury must accept as conclusive a fact which has been judicially noticed. There are no guidelines for the court to use in exercising this discretion. If the court determines that judicial notice of a fact is not conclusive, the introduction of evidence disputing the fact could be рermitted, see Makos v. Prince, 64 So.2d 670 (Fla.1953), or the jury could be instructed that it may, but is not required to, accept as conclusive the fact judicially noticed, see
Fed.Rule Evid. 201(g) .
The commentary‘s final reference to the federal rule is espеcially instructive with regard to criminal cases. That rule provides in pertinent part: “In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.”
In the instant case, the trial court sat as the finder of fact. Cordova was not entitled to a trial by jury. Wells v. State, 654 So.2d 146 (Fla. 3d DCA 1995). Thus, a question arises as to whether the foregoing principles, grounded in the Sixth Amendment right to a
Conclusive judicial notice enjoys many similarities with, and has much the same effect as, a mandatory presumption. “A mandatory rebuttable presumption requires the trier of fact to presume an element of a crime upon proof of a basic or evidentiary fact unless the defendant comes forward with evidence to rebut the finding of that element.” Marcolini v. State, 673 So.2d 3 (Fla.1996) (citations omitted). “Such a presumption violatеs a defendant‘s due process rights by relieving the State of the burden of persuasion.” Id. at 4. Conclusive judicial notice not only establishes the existence of a particular fact, it precludes the adverse party from introducing evidence to rebut it. Such a device would certainly run afoul of the same due process rights implicated in the case of mandatory presumptions. Even in the case of a bench trial, judiсial notice “must not undermine the factfinder‘s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979). Accordingly, much like a permissive inferencе, a constitutional use of judicial notice in a criminal case allows, but does not require, the trier of fact to accept as true a fact so noticed.
Having determined that judicial notice of еlemental facts in a criminal case is constitutionally permissible, we now turn our attention to whether judicial notice was correctly taken in this case. The state argues that the trial court properly took judicial notice under either of the following provisions:
90.202 Matters which may be judicially noticed.—A court may take judicial notice of the following matters, to the extent they are not embraced within s. 90.201:
(11) Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court.
(12) Facts that are not subject to dispute because they are capable of accurаte and ready determination by resort to sources whose accuracy cannot be questioned.
Next, we nоte that service of the injunction on Cordova is not the type of fact that is not subject to dispute because it is capable of accurate and ready determination by resort to a source whоse accuracy cannot be questioned.
Despite our holding that the lower court incorrectly judicially noticed the fact that Cordova was served with the injunction, “[w]e apply the familiar rule that an аppellate court will not reverse when the trial court reaches the right result for the wrong reason.” Irving v. State, 627 So.2d 92, 94 n. 1 (Fla. 3d DCA 1993).1 In cases such as this, the trial court may correctly allow the state to use a permissive inference to establish the
The return of service itself, while hearsay, is admissible in evidence under the public records exception,
For the foregoing reasons we affirm Cordova‘s conviction and sentence.
Affirmed.