687 N.E.2d 320 | Ohio Ct. App. | 1996
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *178 Defendant-appellant, John Moody, appeals a decision of the Butler County Court of Common Pleas finding him in contempt of court and sentencing him to a fine and incarceration in the Butler County Jail.
On February 21, 1996, appellant was indicted for grand theft in violation of R.C.
Following the return of the jury verdict, the trial court found appellant in contempt of court and summarily ordered him incarcerated for failure to appear during the jury deliberations. The record indicates that the jury began deliberating at approximately 10:15 a.m. on April 3, 1996. The jury submitted two questions to the court at approximately 10:25 a.m. Appellant was not present when the jury submitted its questions to the court. The trial court waited approximately one hour for appellant to return before answering the jury's questions in appellant's absence. Appellant returned to the courtroom at approximately 2:00 p.m. that afternoon. Upon his return to the courtroom, appellant informed the court that he had taken his brother to a medical appointment.
The trial court found appellant in direct contempt of court and summarily ordered him incarcerated for his failure to appear during the jury deliberations. On April 5, 1996, the trial court held a dispositional hearing on the contempt charge, after which the court sentenced appellant to six months' incarceration and a $5,000 fine. This sentence was journalized by an entry dated April 16, 1996. On April 12, 1996, the trial court held a second hearing and reduced appellant's sentence to thirty days' incarceration and a $250 fine. This sentence was journalized by an entry dated April 16, 1996 and filed one minute after the preceding sentence. It is from the finding of contempt and subsequent sentencing that appellant now appeals, setting forth the following assignments of error:
Assignment of Error No. 1:
"The trial court erred to the prejudice of appellant by incarcerating him for ten days without a journalized entry."
Assignment of Error No. 2:
"The trial court erred in finding direct contempt and imposing a six-month sentence and $5,000.00 fine and in finding any contempt and imposing any fine."
We will address appellant's second assignment of error first. In his second assignment of error, appellant contends that the trial court erred in finding him in contempt and sentencing him to a six-month term of incarceration and a $5,000 fine. Appellant argues that under the circumstances, the court erred in finding any contempt and imposing any fine. Appellant further argues that since the trial court did not instruct appellant in advance that he would be required to be available during jury deliberations, appellant did not disobey an order of the court.
"`Contempt of court' is defined as the disobedience or disregard of a court order or command of judicial authority."In re Parker (1995),
Contempt can be classified as either criminal or civil. The purpose of a criminal contempt citation is to punish, whereas the purpose of a civil contempt citation is to coerce. Brown v.Executive 200, Inc. (1980),
Within the context of criminal contempt, contemptuous conduct can be further classified as either direct or indirect. Direct contempt involves misbehavior or disobedience of a court order that occurs in the presence of the court, whereas indirect contempt involves an act or conduct that takes place outside the presence of the court. In re Carroll (1985),
A court may summarily punish a person who is guilty of direct contempt, where there is an obvious need to immediately act.In re Davis (1991),
The failure to appear at or arriving late to a hearing before the court occurs in the constructive presence of the court rather than the immediate presence of the court and is treated as indirect contempt. Davis,
A trial court's finding of contempt will not be disturbed on appeal absent an abuse of discretion. State ex rel. DelcoMoraine Div., Gen. Motors Corp. v. Indus. Comm. (1990),
In this case, the trial court summarily found appellant guilty of direct contempt for violating R.C.
The record indicates that on April 5, 1996, the trial court afforded appellant an opportunity to be heard. However, the court did not file a written charge, and appellant was not given an opportunity to defend; rather, appellant was given an opportunity to be heard in mitigation of sentence only. Therefore, we find that the trial court did not follow the proper statutory procedures when it found appellant in contempt of court and sentenced him. See R.C.
The trial court's finding of contempt and subsequent sentencing of appellant without providing appellant with due process as required by R.C.
In his first assignment of error, appellant contends that the trial court erred by incarcerating him for ten days without a journalized entry. Appellant argues that a trial court speaks only through properly journalized entries and cannot order a person incarcerated without an appropriate journalized order or entry.
The record reveals that the trial court found appellant in direct contempt and directed that he be immediately removed to the county jail to await sentencing. The last sentence of the entry of verdict filed on April 5, 1996 finds appellant in contempt. After a hearing was held, a sentencing entry was journalized. Given that the trial court believed that appellant was guilty of direct contempt of court, this procedure was proper. See R.C.
Judgment reversedand cause remanded.
WILLIAM W. YOUNG, P.J., and KOEHLER, J., concur.