Reins v. Johnson

604 So.2d 911 (1992)

Barbara REINS, Appellant,
v.
Don J. JOHNSON, Albinas Smulkstys, Burt Travers and Barbara M. Travers, Appellees.

No. 91-02473.

District Court of Appeal of Florida, Second District.

September 4, 1992.

Robert N. Reynolds of Robert N. Reynolds, P.A., Miami, for appellant.

No appearance for appellees.

PER CURIAM.

Barbara Reins appeals an order of the circuit court which adjudicates her guilty of indirect criminal contempt.

Mrs. Reins's allegedly contemptuous conduct occurred during the course of prolonged and acrimonious litigation over the right to use a boat dock. The specific facts — claims of harassment and continuing denial of access to the dock — are not essential to the decision we reach in this appeal. We agree with Reins that the contempt proceedings failed to satisfy the requirements of Florida Rule of Criminal Procedure 3.840. The proceedings were commenced, not upon an order to show cause as required by subsection (1) of the rule, but only upon the unsworn motion of the plaintiffs in the underlying civil action.

Although there appears to have been no objection below, noncompliance with rule 3.840 constitutes fundamental error. Brown v. State, 595 So.2d 259 (Fla. 2d DCA 1992); Bray v. Rimes, 574 So.2d 1114 (Fla. 2d DCA 1990). Only an express waiver will suffice to estop the aggrieved party from challenging the adjudication on appeal. Persoff v. Persoff, 589 So.2d 1007 (Fla. 4th DCA 1991). Mrs. Reins made no such waiver.

The order under review is also deficient in that it fails to recite the "facts constituting the contempt of which the defendant has been found and adjudicated guilty." Fla.R.Crim.P. 3.840(a)(6).

Reversed.

LEHAN, C.J., and RYDER and DANAHY, JJ., concur.