HERMON WILLIAMS v. STATE OF FLORIDA , 2017 Fla. App. LEXIS 10062 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
HERMON WILLIAMS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-1720
[July 12, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Elizabeth Anne Scherer, Judge; L.T. Case Nos.
15005929CF10A and 15009710CF10A.
Carey Haughwout, Public Defender, and James W. McIntire, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
DAMOORGIAN, J.
In this appeal, Appellant challenges three adjudications of direct
criminal contempt imposed by the court after Appellant went on a vulgar
and disrespectful tirade during a calendar call. We affirm the first
adjudication of contempt, but reverse the second and third adjudications.
Although a defendant may lawfully be charged and convicted of
multiple counts of contempt during the course of one proceeding, the basis
for each charge must be sufficiently distinct. For example, in Tenorio v.
State, 462 So. 2d 880, 881 (Fla. 2d DCA 1985), the defendant earned four
contempt convictions based on “the expression of an obscenity directed to
the court at or near the courtroom’s doorway, the repetition of the
obscenity when the appellant was brought into the courtroom, and two
separate acts of kicking ‘buckets of files’ from the clerk’s desk.” The
appellate court affirmed each conviction, holding that “four temporally
distinct episodes of contumacious conduct occurred.” Id.Conversely, a defendant may not be charged and convicted of multiple
counts of contempt based on one continuous episode of contemptuous
behavior. See B.M. v. State, 523 So. 2d 1185, 1185−86 (Fla. 2d DCA 1988)
(holding that a defendant could not be held in contempt for mocking the
judge in reaction to being held in contempt for swearing at the judge
because the entire encounter was “a continuous episode of sparring”
worthy of only a single contempt charge); Butler v. State, 330 So. 2d 244,
244 (Fla. 2d DCA 1976) (holding that a “single outburst . . . interrupted
only by the court interjecting itself long enough to inform the appellant
that he had committed yet another act of contempt” should have resulted
in one charge rather than six).
Illustrative of this point is this Court’s recent opinion in Swain v. State,
42 Fla. L. Weekly D1118 (Fla. 4th DCA May 17, 2017). There, a defendant
was charged and convicted of contempt after he unleashed a stream of
profanity at the court at a change of plea hearing. Id. After the court
pronounced its sentence on the contempt charge, the defendant made an
additional mocking statement which resulted in another contempt
conviction. Id. On appeal, we reversed the second contempt conviction,
holding that the underlying “statement was not sufficiently separate from
the original stream of profanity to merit a second contempt charge.” Id.We reasoned that the episode was continuous because the additional
mocking statement was reactionary to the judge’s imposition of the first
contempt charge and was made by the defendant in an attempt to “lessen
the court’s authority” and “simply get the last word into the argument.”
Id. at D1119.
The transcript of the calendar call here reflects that after the court
explained that Appellant’s public defender could not ethically adopt his
pro se motion, Appellant became irate and unleashed a stream of
profanities at the court. The court interjected long enough to inform
Appellant that he committed an act of contempt and in response, Appellant
continued with his tirade. This pattern repeated itself several times until
Appellant was eventually escorted out of the courtroom. All in all, the
obscenities shouted by Appellant were part of the same continuous
outburst and seem to best be read as an attempt to get the last word.
Although we do not in any way condone Appellant’s disrespectful and
vulgar behavior, under these circumstances, Appellant should have only
been convicted of one count of contempt. Swain, 42 Fla. L. Weekly at
D1118; B.M., 523 So. 2d at 1185-86; Butler, 330 So. 2d at 244. Therefore,
we reverse Appellant’s second and third contempt convictions in their
entirety.
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Affirmed in part and reversed in part.
CIKLIN and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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