David Lawton Petty v. State of Florida , 263 So. 3d 307 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-3686
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DAVID LAWTON PETTY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.
March 4, 2019
BILBREY, J.
Appellant, David Lawton Petty, challenges the trial court
order finding him in indirect criminal contempt and imposing a
ten-day jail sentence. We affirm the order finding him in
contempt but reverse for resentencing in accordance with rule
3.840(g), Florida Rules of Criminal Procedure.
Rule 3.840(g) requires that prior to the pronouncement of
sentence for indirect criminal contempt, the court “inform the
defendant of the accusation and judgment,” “inquire as to
whether the defendant has any cause to show why sentence
should not be pronounced,” and afford the defendant “the
opportunity to present evidence of mitigating circumstances.” In
addition, the sentence must be pronounced “in open court and in
the presence of the defendant.” Fla. R. Crim. P. 3.840(g). The
trial court did not comply with these requirements, and the
failure to comply with rule 3.840(g) is fundamental error. Gooden
v. State, 931 So. 2d 146 (Fla. 1st DCA 2006); see also Ensign v.
State, 67 So. 3d 353 (Fla. 2d DCA 2011).
The order finding Appellant in willful contempt of court is
affirmed, but the sentence imposed is reversed pursuant to
Gooden. This cause is remanded for resentencing compliant with
rule 3.840(g).
AFFIRMED in part, REVERSED in part, and REMANDED.
ROWE and KELSEY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331. Such a motion must be filed on or before
March 7, 2019. In absence of such motion by that
date, the Clerk shall issue the mandate thereafter
forthwith. Any response to such motion may be
filed on or before March 13, 2019.
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Andy Thomas, Public Defender, and Jasmine Russell, Assistant
Public Defender, Tallahassee, for Appellant.
Ashley B. Moody, Attorney General, and Virginia Chester Harris,
Assistant Attorney General, Tallahassee, for Appellee.
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