FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1309
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DON PLUMMER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Duval County.
Eric C. Roberson, Judge.
September 25, 2019
B.L. THOMAS, J.
Appellant challenges the lower court’s order finding him
guilty of direct criminal contempt for filing fraudulent construction
liens.
Appellant filed an action to quiet title to real property in
Duval County. Appellant had previously filed a construction lien
claiming that he had done landscaping and yard improvements to
the subject property and that the owner of the property owed him
$6,500 to reimburse him for work performed.
At a hearing on Appellant’s complaint, Appellant informed the
court that he had repaired the floor of the subject property and had
maintained the yard of the subject property for approximately
eight months but admitted that he had no contract with any of the
property owners to perform the work. Appellant testified that he
had been unable to find the officers of the corporation who owned
the property and had been able to enter the property because the
back door was “already breached.”
The court presented Appellant with records of other
construction liens on abandoned property filed by a corporation of
which Appellant was president. Appellant admitted that the other
houses, for which he had filed construction liens, were also
abandoned, and he had made repair and done landscaping work on
those without authorization from the property owner as well.
Appellant stated that he thought he didn’t need an agreement with
the property owners because “it was more of an acquiescence by
default situation.”
The court stated that “what’s being done here is fraud, and
there is just no two ways about it.” The court found Appellant in
contempt of court for filing fraudulent liens on the property that
was the subject of Appellant’s claim and on the property named in
the liens the court had found through its own research. The court
stated it would enter a separate order striking the other claims of
lien from the public record and enter an injunction preventing
Appellant from filing more liens without judicial approval.
The court entered an order of contempt, finding Appellant
guilty of contempt of court for “in court and under oath
fraudulently requesting the relief of Quieting Title to the
Property.”
Analysis
“To establish criminal contempt, the evidence must establish
a ‘willful act or omission calculated to embarrass or hinder the
court or obstruct the administration of justice.’” Carter v. State,
954 So. 2d 1185, 1186 (Fla. 4th DCA 2007) (quoting Forbes v. State,
933 So. 2d 706, 712 (Fla. 4th DCA 2006)).
“A criminal contempt may be punished summarily if the court
saw or heard the conduct constituting the contempt committed in
the actual presence of the court.” Fla. R. Crim. P. 3.830 (emphasis
added).
In order to qualify as direct criminal contempt, . . .
the misconduct must have occurred in open court, in the
presence of the judge, [and] disturb[ ] the court's
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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.
Plank v. State,
190 So. 3d 594, 601 (Fla. 2016) (internal quotations
omitted).
While the court found in its order that Appellant fraudulently
requested relief “in court and under oath,” Appellant argues, and
the State concedes, that the court’s finding of direct criminal
contempt relied largely on filings that were not before the court,
and the order was not based on misconduct committed in the
court’s presence. The court’s summarily finding Appellant guilty
of direct criminal contempt was improper.
REVERSED.
LEWIS and ROBERTS, 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.
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John M. Merrett, Jacksonville, for Appellant.
Ashley Moody, Attorney General, Virginia Chester Harris,
Assistant Attorney General, Tallahassee, for Appellee.
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