DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL J. ROCQUE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-354
[February 24, 2021]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Jill K. Levy, Judge; L.T. Case Nos. 19-8253CT10, 18-
36511MU10A, and 19-000050AC10A.
Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
Michael J. Satz, State Attorney, and Nicole Bloom, Assistant State
Attorney, Fort Lauderdale, for appellee.
MAY, J.
A defense attorney appeals a contempt order entered against him while
he was representing his client in a DUI case. He argues on appeal that
the trial judge erred in: (1) denying his request for a brief recess to prepare
a written motion to disqualify the trial judge; (2) taking him into custody
prior to the contempt hearing; and (3) holding him in direct criminal
contempt. The State agrees the court erred in taking defense counsel into
custody before the contempt hearing. We agree on that issue and reverse.
The contempt issue arose during a motion to suppress hearing. The
hearing began with some friendly banter. When the prosecutor asked the
court to have defense counsel “frame the issue[s]” of his motion to
suppress, defense counsel responded: “I - - I’m attacking everything,
Judge. Basis for [my client’s] stop, the detention, no reasonable
articulable suspicious [sic], no probable cause, harassed, Miranda not read
properly. That’s it. I guess that covers everything.”
The State then called its first witness. During cross-examination,
defense counsel asked questions regarding the accident and the road
conditions, to which some relevance objections were sustained. After a
brief argument, defense counsel was instructed to move on. Defense
counsel then inquired about the vehicle his client was driving, but the trial
court continued to sustain the State’s relevancy objections. When defense
counsel attempted to respond to the rulings, the trial judge began to
admonish him and threatened contempt because she felt defense counsel
was unprofessional in challenging her rulings.
The trial judge then sua sponte directed the witness to step down,
during which the following exchange occurred:
Defense counsel: Oh. Are you cancelling this witness before
I’m done cross-examining?
....
The court: Who’s the State’s next witness?
Defense counsel: Judge, I’m filing a motion--
....
Defense counsel: - - to disqualify.
....
Defense counsel: I’m going to be ordering this transcript and
ordering a - - filing a motion - -
The court: Who’s the State’s next witness?
Defense counsel: - - to disqualify.
....
Defense counsel: I’m asking to adjourn this - - I’m asking to
adjourn the - -
The court: Your request is - -
Defense counsel: - - motion right now - -
The court: - - denied.
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Defense counsel: - - so I can file my motion.
The court: Your request is denied.
Defense counsel: I’m requesting time to file my motion.
The trial judge did not respond and instructed the State to call its next
witness.
Defense counsel indicated that the driver’s identity was at issue and
that is why his questions regarding the victim’s window position and
description of the driver’s vehicle was important. The trial judge told
defense counsel: “you need to be quiet now. Sir, stand up please.”
Defense counsel responded: “Judge, when you say I need to be quiet, what
does that mean?” The trial court then directed the bailiff to take defense
counsel into custody.
The court: I’m going to hold a contempt hearing. Have a seat.
Defense counsel: And you’re handcuffing me now?
The court: I am taking you into custody. We’re going to have
a contempt hearing.
The bailiff handcuffed defense counsel and took him into custody. The
trial judge asked defense counsel why he shouldn’t be held in contempt
given his disruptive behavior. Defense counsel invoked his Fifth
Amendment right to counsel and a short recess was held.
Following the recess, an attorney appeared to represent defense
counsel. The judge explained her position and the two discussed what
was to occur. Defense counsel’s attorney then requested the trial court
set the issue for a formal hearing at a later date, which the trial court
denied. The attorney then argued:
Attorney: Your Honor, if we’re forced to proceed today, []
we’re not going to have a transcript of [sic] occurred which
would be obviously a record that couldn’t be really contested,
we would ask that - - we would have to call Your Honor as a
witness and for that reason we’d ask . . . Your Honor recuse
so that it can be before another Judge.
The court: The [c]ourt is not going to do that at this point.
We’re in the middle of a criminal contempt hearing in which
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this has been committed in front of this [c]ourt. . . . This
[c]ourt is not [disqualifying itself] and I’m going to rule at this
point in time if there’s nothing more to be said.
Further discussion ensued.
The defense counsel’s attorney objected to the court placing him in
handcuffs before there was any contempt finding. The attorney noted that
defense counsel was handcuffed and in custody for 45 minutes. The
attorney denied the court’s allegations and again requested a formal
hearing and transcript. The court denied the request, found the attorney’s
argument regarding defense counsel’s behavior unsatisfactory, and found
defense counsel in direct criminal contempt.
Prior to imposing sentence, the court asked if defense counsel had
anything to say in mitigation. Defense counsel declined to address the
court, but his attorney noted for the record that defense counsel had not
received a full and thorough hearing and that there was no evidence to
support the trial court’s finding of contempt. The court then imposed
sentence and removed the handcuffs. The trial judge eventually
disqualified herself.
In his second issue on appeal, defense counsel argues the trial court
erred in taking him into custody before entering a judgment on direct
criminal contempt. The State acknowledges the trial court took defense
counsel into custody prior to beginning the contempt proceeding and that
this constituted error. We agree.
[A] trial court should avoid comments or conduct indicating a
bias or predisposition to hold the alleged contemnor in
contempt. Here, the court displayed such predisposition by
ordering that [defense counsel] be taken into custody prior to
offering the opportunity to show cause.
....
There is nothing in the record indicating why the court felt the
need to issue the custody order. We conclude that taking
[defense counsel] into custody under these circumstances,
without apparent cause, gives a reasonable person the
impression that the court has pre-determined the outcome
without first listening to any mitigation or showing of cause
as to why the contemnor should not be held in contempt.
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McNamee v. State,
915 So. 2d 276, 277 (Fla. 4th DCA 2005).
Here, similar to McNamee, the trial judge believed defense counsel had
been inappropriate and unprofessional. And like McNamee, the trial judge
took defense counsel into custody before he had an opportunity to show
cause. The State agrees that McNamee controls.
We therefore reverse and remand the case. Because the original trial
judge has recused herself, the successor judge will have the opportunity
to proceed in accordance with this opinion. We decline to reach issue one
concerning the motion for disqualification, and we neither consider nor
express our opinion on issue three regarding the sufficiency of the
evidence.
Reversed and remanded.
DAMOORGIAN and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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