Tobkin v. State ( 2004 )

KLEIN, J.

The trial court found appellant guilty of criminal contempt. The trial judge’s order to show cause why appellant should not be held in contempt was based on appellant’s wife’s unsworn motion stating that appellant had failed to comply with a court order requiring him to pay attorney’s fees. We agree with appellant that the proceeding failed to comply with Florida Rule of Criminal Procedure 3.840(a) which provides:

Order to Show Cause. The judge, on the judge’s own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court.

The order to show cause was neither on the judge’s own motion nor on an affidavit. This constitutes fundamental error requiring reversal. Mix v. State, 827 So.2d 397 (Fla. 2d DCA 2002). Reversed.

WARNER and POLEN, JJ., concur.