DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
KEVIN MARCELLO HALL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D21-262
September 29, 2021
Appeal from the County Court for Lee County; James R. Adams,
Judge.
Kathleen A. Smith, Public Defender, and Heather Sutton-Lewis,
Assistant Public Defender, Fort Myers, for Appellant.
Amira D. Fox, State Attorney, and Leah L. Harwood, Assistant State
Attorney, Fort Myers, for Appellee.
LABRIT, Judge.
This direct criminal contempt case stems from Kevin Hall's use
of foul curses and epithets during a court proceeding. We reverse
because the court did not provide Mr. Hall a meaningful
opportunity to introduce evidence of mitigating circumstances and
the contempt judgment contains no factual findings.
Factual Background
The events underlying Mr. Hall's contempt charge occurred
when Mr. Hall attended a first appearance hearing over video
conference. Mr. Hall—who couldn’t see his attorney on the screen
and may have had difficulty communicating with his attorney—
became extremely agitated and called the judge an array of colorful
names, including "mother f*cker" and "b*tch." Mr. Hall also
directed threatening comments to the judge, including stating that
"I hope you die b*tch," "you're a f*cking dead man," and "I hope you
break hell wide open mother f*cker."
Thereafter, the judge immediately asked Mr. Hall if there was
"[a]ny reason why [he] shouldn’t hold [Mr. Hall] in contempt of
[c]ourt." Mr. Hall didn’t answer; instead, he repeated his (mistaken)
belief that defense counsel was not present and accused the judge
and/or the prosecutor of taking a bribe. After defense counsel
stated that a referral to "mental health court" was necessary, the
judge told the parties that he would "roll it" and to bring Mr. Hall
back "tomorrow."
2
The next day, the judge convened a second hearing and told
Mr. Hall that he was "holding a proceeding on . . . contempt at th[at]
point" and that "[t]his [wa]s [Mr. Hall's] opportunity to say anything
[o]n [his] behalf." When the judge asked Mr. Hall if he had anything
to say in mitigation, Mr. Hall was silent. Defense counsel told the
court that Mr. Hall suffered from a mental illness but did not proffer
or introduce evidence of such condition. At the conclusion of that
very brief hearing, the judge pronounced Mr. Hall in contempt of
court and sentenced him to 120 days in jail. This ruling was not
reduced to a written order or judgment. Instead, it was
memorialized on an "order/commitment form," reflecting that the
judge adjudicated Mr. Hall guilty of contempt and remanded him to
jail for 120 days; the form contains no explanation or discussion of
the factual basis underlying the contempt adjudication.
Two weeks later, Mr. Hall filed a motion to "correct, reduce, or
modify [his] sentence and release [him] from custody" based on his
mental illness. The court called that motion up for hearing a few
days after it was filed; at that hearing, Mr. Hall apologized for his
profane outburst and attempted to explain his history of mental
illness, and his counsel asked to introduce testimony from a mental
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health counselor who was familiar with Mr. Hall's condition and
diagnosis. The court declined to receive such evidence but reduced
Mr. Hall's sentence to sixty days.
Analysis
We review orders of direct criminal contempt for abuse of
discretion. Phelps v. State,
236 So. 3d 1162, 1163 (Fla. 2d DCA
2018). Criminal contempt is "[c]onduct which is calculated to
embarrass, hinder, or obstruct the trial court in the administration
of justice or that which is calculated to lessen the court's authority
or dignity."
Id. Such conduct "may be punished summarily if the
court saw or heard [it]" and it was "committed in the actual
presence of the court." Fla. R. Crim. P. 3.830.1
"Because of the summary nature of direct criminal contempt
proceedings, defendants are not entitled to the full panoply of due
process rights typically afforded to criminal defendants." Phelps,
1 The 2020 version of rule 3.830 governs this appeal because
Mr. Hall was convicted before the rule was amended in April 2021
and there isn't "a clear expression of intended retrospective
application" in the latest version of rule 3.830. Love v. State,
286
So. 3d 177, 187–88 (Fla. 2019) ("[T]he 'commonsense' application of
a new procedur[al rule] generally 'depends on the posture of the
particular case' "). For that reason, we cite the 2020 version of rule
3.830 throughout this opinion.
4
236 So. 3d at 1163. However, courts must protect due process
rights in contempt proceedings, particularly "where incarceration
[i]s at issue." Id. (alteration in original). For that reason, trial
judges must "scrupulously follow[]" the procedural requirements of
rule 3.830. Id. One of those requirements is "includ[ing] a recital of
those facts on which the adjudication of guilt is based" in the
contempt judgment. Fla. R. Crim. P. 3.830. Additionally, the
defendant must be provided notice and "the opportunity to present
evidence of excusing or mitigating circumstances." Id. Failure to
follow these procedural requirements is fundamental error. Phelps,
236 So. 3d at 1163–64.
The parties agree that the county court's failure to issue a
judgment with factual findings did not comply with the
requirements of rule 3.830. Reversal is required for this reason
alone. See Cutwright v. State, 934 So. 2d 667, 668 (Fla. 2d DCA
2006); see also Phelps, 236 So. 3d at 1163.
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Moreover, the record establishes that Mr. Hall was not
provided a meaningful opportunity to present mitigating evidence.2
While the court paid lip service to rule 3.830 at the contempt
hearing by asking Mr. Hall if there was "[a]nything [he] wish[ed] to
say in mitigation," Mr. Hall and defense counsel were told only
moments before that the court was hosting a contempt proceeding
"at that point"—leaving defense counsel no meaningful chance to
gather mitigating evidence.3
To make matters worse, by the time defense counsel had the
opportunity to gather evidence of Mr. Hall's mental illness, the court
2Mr. Hall did not address this issue in his brief, but it is a
fundamental error that is apparent on the face of the record, and
we are obligated to correct it. See Phelps, 236 So. 3d at 1164.
3 We note that the first appearance and contempt hearings
occurred on consecutive days in late March 2020, just as various
emergency restrictions associated with the COVID-19 pandemic
were being implemented. The court did not make clear at the first
appearance hearing that it intended to host an evidentiary
contempt hearing the next day; after all, the judge terminated the
first appearance hearing when defense counsel suggested a mental
health referral. Even if the court had specifically announced its
intention to hold a contempt hearing the next day, it is possible
(and understandable) that—because of the rapidly unfolding
dynamics associated with implementation of COVID-19
restrictions—defense counsel did not have an adequate opportunity
to discover and secure evidence concerning Mr. Hall's mental
condition in time to proffer such evidence at the hearing.
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refused to consider it. Specifically, at the hearing on Mr. Hall's
motion to correct or modify the contempt judgment, the court
rejected defense counsel's proffer of testimony from a mental health
counselor familiar with Mr. Hall's condition. The trial court's failure
to consider evidence of Mr. Hall's mental illness constituted a denial
of Mr. Hall's right to due process. See Fla. R. Crim. P. 3.830 ("The
defendant shall be given the opportunity to present evidence of
excusing or mitigating circumstances." (emphasis added)). Reversal
is warranted for this reason as well. See Phelps, 236 So. 3d at
1164.
Mr. Hall also disputes the merits of the contempt judgment,
arguing—as he did below—that his profane outburst was caused by
mental illness, rather than criminally contemptuous intent. We
agree that intent is critical to a contempt judgment. See Riley v.
State, 293 So. 3d 34, 35 (Fla. 2d DCA 2020) ("One's intent to act in
contempt must be proven beyond a reasonable doubt."); Phelps, 236
So. 3d at 1163 (stating that the defendant's conduct must be
"calculated to embarrass, hinder, or obstruct the trial court"
(emphasis added)). The same procedural flaws that require reversal
of the contempt judgment render Mr. Hall's merits argument
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unreviewable. First, the court never issued a written judgment, so
there are no factual findings regarding Mr. Hall's intent, and we are
not empowered to make such findings. See Farneth v. State, 945
So. 2d 614, 617 (Fla. 2d DCA 2006). Second, since the judge
refused to consider evidence of Mr. Hall's mental condition, there is
no record that would permit us to evaluate the merits of Mr. Hall's
defense.
By failing to adhere to the procedural due process
requirements of rule 3.830, the trial court abused its discretion.
Accordingly, we reverse the contempt judgment and resulting
sentence. See Phelps, 236 So. 3d at 1164.
Reversed.
MORRIS, C.J., Concurs.
ATKINSON, J., Dissents with opinion.
ATKINSON, J., Dissenting.
Mr. Hall has never once—neither in the trial court nor on
appeal—indicated that he was deprived of a meaningful opportunity
to present evidence of excusing or mitigating circumstances. See
Fla. R. Crim. P. 3.830 (providing that "criminal contempt may be
8
punished summarily if the court saw or heard the conduct
constituting the contempt committed in the actual presence of the
court" but requiring an opportunity for the defendant to "present
evidence of excusing or mitigating circumstances"). Moreover,
nothing in the record suggests that the trial court denied any
meaningful request for additional time to prepare a defense or for
an opportunity to present additional evidence. I, therefore,
respectfully dissent.
I would remand for entry of a judgment that complies with the
requirement of a written judgment that includes "a recital of those
facts on which the adjudication of guilt is based." Fla. R. Crim. P.
3.830; see also Jackson v. State,
779 So. 2d 379, 379–80 (Fla. 2d
DCA 2000) ("affirm[ing] the trial court’s finding of direct criminal
contempt" because the contemnor's "contemptuous behavior
occurred in the presence of the trial court, frustrated an ongoing
proceeding, and is apparent on the face of the record" but
remanding for entry of a judgment complying with rule 3.830
"because the judgment itself did not contain a recital of the facts
upon which the adjudication was based" (citing McGlamory v. State,
723 So. 2d 388 (Fla. 2d DCA 1999)); McGlamory,
723 So. 2d at 388–
9
89 ("We find no error in the trial court’s determination that
McGlamory’s conduct constituted contempt of court," but "we
reverse McGlamory’s criminal contempt order and remand the case
with directions that the trial court render a judgment in compliance
with rule 3.830."); Cutwright v. State, 934 So. 2d 667, 668 (Fla. 2d
DCA 2006) ("Because the written judgment in this case fails to
specify the conduct upon which the adjudication was based, we
must reverse Cutwright’s criminal contempt order and remand with
directions that the trial court render a judgment in compliance with
rule 3.830." (citing McGlamory, 723 So. 2d at 388)).
Opinion subject to revision prior to official publication.
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