Kelley v. RiceKelley v. Rice
Telisia Shaonte Kelley petitions for a writ of habeas corpus. Several hours after her petition was filed in this court—and fоllowing our order directing an immediate response from the State—Ms. Kelley was released from custody. The State now urges us to dismiss the petition as moot. Because of the serious errors apparent from the face of the record, and because the trial court is still attempting to exercise nonexistent jurisdiction over Ms. Kelley, we decline to do so. As explained in more detail below, we instead treat the petition as one invoking our certiorari and prohibition jurisdiction and grant relief.
The facts underlying this petition are troubling. Ms. Kelley, an eighteen-year-old woman who apparently has no criminal record, witnessed a violent crime committed against her brother. She remained at the scene and gave a statement to the police, and the alleged perpetrator of the offensе was criminally charged. Some six months later the State attempted to subpoena Ms. Kelley and her brother to testify at the accused‘s trial, but it was unable to locate either of them in order to personally serve them. The first subpoena directed to Ms. Kelley1 was returned with a notation that she had moved and left no forwarding address. A second one was left at that same address with a woman identified as Ms. Kelley‘s sistеr. A third subpoena was again returned from that same address with a notation that Ms. Kelley had moved and left no forwarding address.
Neither Ms. Kelley nor her brother appeared for the accused‘s trial, and eventually the charges against him were dismissed. Based on the subpoena left with Ms. Kelley‘s sister, the State sought and Circuit Judge Brandt Downey issued a writ of bodily attachment against Ms. Kelley for failing to appear in court to testify. Pursuant to the writ, Ms. Kelley was arrested several months later. She then was held without bond for four days before she was brought before Judge Downey, who then immediately conducted a summary hearing.
At the start of the hearing, the assistant state attorney discussed the facts of the underlying criminal case and alleged that Ms. Kelley was subpoenaed to testify at the trial but failed to appear. Judge Downey then lectured Ms. Kelley оn her failure to appear and inquired whether she had anything to say. She responded that she had not received the subpoena because she was not living at the address where it was served. She assured the judge that if she had received the subpoena she would have come to court. Judge Downey replied that when he had reviewed the court file several months earlier he was convinced that she hаd been properly served.
Because of the serious errors alleged in the petition, we ordered an immediate, same-day response from the State. Shortly after our response order was issued, Judge Downey held a hearing at which he orally vacated Ms. Kelley‘s judgment and sentence. He initially ordered her held in custody pending the filing of a contempt charge against her, but on the public defender‘s motion he permitted Ms. Kelley‘s release on her own recognizance. As a condition of this release, he ordered her to appear at the state attorney‘s office to give a statement regarding the crime she had witnessed. He warnеd her that if she failed to do so a warrant would be issued for her arrest. This court was made aware of these subsequent developments through a supplemental petition and response filed here.
JURISDICTION
The State contends we should dismiss the petition as moot because Ms. Kelley has been released from custody. It is true that the matter is technically moot. See Bowles v. Singletary, 698 So.2d 1201, 1202 n. 3 (Fla.1997). However, mootness does not destroy a court‘s jurisdictiоn if the question raised is of great public importance or is likely to recur, id.; Holly v. Auld, 450 So.2d 217, 218 n. 1 (Fla.1984); Blalock v. Rice, 707 So.2d 738, 739 (Fla. 2d DCA 1997), or if the error is capable of repetition yet evading review. N.W. v. State, 767 So.2d 446, 447 n. 2 (Fla.2000). Because Judge Downey took action to moot this petition apparently in direct response to this court‘s involvement, and because it appears that in another of his cases the same errors may have been committed and evaded review, wе address the merits of the petition.2
We also conclude that we have certiorari and prohibition jurisdiction to review Judge Downey‘s subsequent actions. Although he vacated Ms. Kelley‘s conviction and sentence and released her from custody, he did so in an order purporting to release her on recognizance with the condition that she appear at the state attorney‘s office. But Ms. Kelley hаs not been charged with contempt or any other crime. Therefore, Judge Downey lacks jurisdiction to release her on recognizance, to condition that release in any manner, or to order her rearrest if she violates those conditions. To the extent that Judge Downey has entered an order in excess of his jurisdiction, we may review it by means of certiorari. See Hudson v. Hofmann, 471 So.2d 117 (Fla. 2d DCA 1985). Insofar as Judge Downey has indicated аn intent to continue exercising nonexistent jurisdiction over Ms. Kelley, we may prevent him from doing so by way of prohibition. See State ex. rel. Gillham v. Phillips, 193 So.2d 26 (Fla. 2d DCA 1966); Anderson Inv. Co. Ltd. v. Lynch, 540 So.2d 832 (Fla. 4th DCA 1988).
Our analysis of the merits turns in part on the nature of Ms. Kelley‘s conviction. The record is ambiguous in this respect, but it suggests four possibilities. The first is set forth in the written judgment, which purported to adjudicate Ms. Kelley guilty of failure to appear. As such, it was the product of a wholesale denial of Ms. Kelley‘s rights under the Florida Rulеs of Criminal Procedure and the Florida and Federal Constitutions. Beyond that, the written judgment conflicts with the judge‘s oral pronouncement at the hearing. See Driver v. State, 710 So.2d 652 (Fla. 2d DCA 1998).
According to the oral pronouncement, the judge found Ms. Kelley guilty of some unspecified variety of contempt. This, in turn, admits of three possibilities: civil, direct criminal, or indirect criminal. We eliminate civil contempt as a possibility because Judge Downey imposed а sentence which was clearly intended to punish and which could not be purged by Ms. Kelley‘s compliance with the prior court order. See Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977).
Determining which category of criminal contempt applies to Ms. Kelley‘s conviction is more problematic. Direct criminal contempt results from conduct committed in the actual presence of the judge. It may be punished summarily pursuant to
Given the paucity of due process protections afforded Ms. Kelley in the court below, it is more likely that Judge Downey proceeded against her on a charge of direct criminal contempt. And, indeed, we have found authority for the proposition that a witness‘s failure to appear in court in response to a subpoena is direct, as opposed to indirect, criminal contempt. We disagree, but deem it nеcessary to examine this proposition in some depth.
Direct criminal contempt is defined by
In order to understand and apply this seemingly simple definition and rule, it is necessary to consider its constitutional underpinnings. Due process requires that before a person may be convicted and sentenced to jail, she must be afforded reasonable notice of the charges against her and an opportunity to be heard which includes at a bare minimum the right to examine witnesses against her, the right to offer testimony, and the right to counsel. See In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948).
The narrow exception ... includes only charges of misconduct, in open сourt, in the presence of the judge, which disturbs the court‘s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent `demoralization of the court‘s authority before the public.’
Id. at 275, 68 S.Ct. 499 (quoting Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925)). Because the Constitution permits only this narrow category of contempts to be punished summarily in the manner described by
Under this definition, Ms. Kelley‘s alleged conduct was not of the variety that could be constitutionally summarily punished. For one thing, Judge Downey did not have personal knowledge of one of the essential elements of the allegedly contemptuous conduct. Although he knew that Ms. Kelley did not appear in court for the trial, that failure was contemptuous only if Ms. Kelly knew she was required to come to court. Judge Downey had no personal knowledge regarding this.3 Also, immediate punishment was not necessary to prevent demoralization of the court‘s authority. Ms. Kelley was punished some six months after her allegedly contumacious act.
We could end our discussion here, but for Aron v. Huttoe, 265 So.2d 699 (Fla. 1972). In Aron, the supreme court accepted review to determine “[w]hethеr a person who fails to appear at trial after having been properly subpoenaed may be brought into court during the trial and summarily held in contempt after failing to prove an adequate excuse.” Id. at 700. The court did not specifically answer the certified question, but it adopted the district court‘s opinion which rejected a due process challenge to the summary procedure employed in that case. Id.
We conclude that Aron is not controlling because it is distinguishable from the instant case and is of questionable validity in light of more recent Florida Supreme Court decisions. We disagree with other district courts which have interpreted Aron broadly to hold that failing to appear in court pursuant to a court order may constitute direct criminal contempt. See Speer v. State, 742 So.2d 373 (Fla. 1st DCA 1999); Woods v. State, 600 So.2d 27 (Fla. 4th DCA 1992).4
It is important to note that the actual holding of Aron is much more limited than suggested by Speer and Woods. The district court in Aron held that the conduct at issue there could be characterized as “rule contempt” because the contemnor had violated
The more expansive interpretations given to Aron by other courts appear to rest on dicta in the district court opinion. After reaching its conclusion regarding the procedure necessary to punish rule contempt, the court went on to posit that, if the conduct in that case had to be classified as either civil or indirect or direct criminal contempt, it constituted direct criminal contempt. Id. at 273-74. The court reasoned that the contemptuous acts were committed in the trial judge‘s actual presence because the judge saw thаt the contemnor had not appeared at trial and “heard from counsel that the witness subpoenas... had been served on him.” Id. at 274 (emphasis added).
Since Aron, however, the supreme court has expressly rejected a similar argument. In Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977), the petitioner contended that the other party‘s conduct could be summarily punished as direct criminal contempt because the alleged contemnor, while in the judge‘s presence, admitted tо contemptuous conduct which had occurred outside the judge‘s presence. The Pugliese court recognized that this argument would obliterate the distinction between indirect and direct criminal contempt because “the judge must always hear some testimony in his presence at a hearing on indirect contempt concerning conduct which took place outside his presence.” Id. at 426. The court declined to accept any “notion that would expunge [that] distinction.” Id. We interpret this as a repudiation of the suggestion in Aron that the contemptuous acts were considered to have been committed in the actual presence of the trial judge simply because the judge “heard from counsel that the witness subpoenas... had been served,” Aron, 258 So.2d at 274, and we conclude that to the extent the supreme court had adopted that dicta, the court has since disavowed it.
Therefore, we decline to follow the holdings of Speer and Woods that a witness‘s failure to appear in response to a subpoena constitutes direct criminal contempt. We hold instead that if a witness in a criminal case fails to appear in court in response to a subpoena, that conduct may be punished, if at all, as indirect criminal contempt in accordance with the procedures outlined in
We conclude therefore that Ms. Kelley was entitled to the full panoply of due process rights afforded one accused of indirect criminal contempt. These rights are expressly included in
Turning first to the explicit requirements of
More important though, simply labeling Ms. Kelley‘s conduct as direct criminal contempt does not alter the fact that she was entitled to the procedural due process required by In re Oliver, 333 U.S. at 275, 68 S.Ct. 499, unless her conduct fell within the narrow exception outlined in that case. Even if Judge Downey reasonably concluded that Ms. Kelley‘s conduct effectively occurred in his presence so as to constitute direct criminal contempt under Aron, he cannot have believed that immediate punishment was necessary “to prevent demoralization of the court‘s authority before the public,” In re Oliver, 333 U.S. at 275, 68 S.Ct. 499, if for no other reason than the punishment was not imposed until some six months after the alleged conduct. See Hayes v. State, 592 So.2d 327 (Fla. 4th DCA 1992).
This alone constitutionally entitled Ms. Kelley to certain procedural protections in addition to those specifically provided for by
Thus, even if we had determined that Ms. Kelley was not entitled to all of the procedural protections outlined in
CERTIORARI AND PROHIBITION
As explained above, Judge Downey has since vacated Ms. Kelley‘s conviction
We treat Ms. Kelley‘s supplemental petition in part as a petition for writ of certiorari, grant it, and quash the order releasing Ms. Kelley insofar as it purports to do so on recognizance conditioned on her appearance at the state attorney‘s office. In the absence of any pending charge аgainst her, Ms. Kelley was simply entitled to be released.
We also treat Ms. Kelley‘s supplemental petition in part as a petition for writ of prohibition. At the hearing releasing Ms. Kelley, Judge Downey advised her that he would order her arrest if she violated the conditions of her release. Because no contempt proceeding has been instituted, Judge Downey has no lawful basis on which to order Ms. Kelley‘s arrest. Wе therefore grant the petition for writ of prohibition and restrain Judge Downey from ordering Ms. Kelley‘s arrest or otherwise attempting to exercise jurisdiction over her unless contempt proceedings or other criminal charges are properly initiated against her at some time in the future.
BLUE, C.J., and CASANUEVA, J., Concur.