Harber v. Shaffer , 755 P.2d 640 ( 1988 )

MEMORANDUM OPINION

RAPP, Special Justice.^*

The petitioner, Charles C. Harber, seeks application of criminal statutory sentence reduction credits to his present period of confinement for civil indirect contempt. We, after assuming jurisdiction, deny.

This matter comes before us because the petitioner, Harber, refused to obey an order of the trial court issued for the benefit of another party. Harber was, after refusal, subsequently cited for contempt, tried by jury and determined to be guilty of civil indirect contempt. The trial court thereafter ordered Harber to be confined for six months¹ and pay a fine of five hundred dollars. In its Order of Commitment the trial court added the words “flat time” to the previously imposed confinement period of six months. The addition of the words “flat time”² would effectively deny Harber the benefits of statutory criminal sentence reduction credits,³ if such credits were applicable to his confinement. Harber seeks relief from this court by a Writ of Mandamus requesting the words “flat time” be stricken from the Order of Commitment and that he be credited with the statutory time reduction credits provided by Title 57 in the determination of total chronological time to be served by a prisoner.

This action originated as a private matter between individuals seeking civil relief. It was not a criminal action brought by public authorities for correction of an offense committed against the state.

Harber, by his refusal to obey the trial court’s order issued for the benefit of a third party, the validity of which he does not here question, started the chain of events culminating in his confinement and today’s decision.

It is too well known to require citation of authority that a court, upon a party’s refusal to obey its order, may, in an attempt to enforce its order for the benefit of a third party, issue a citation for indirect contempt. The court, after a hearing, can order a trial of the matter.⁴ If the party is found guilty of failing to obey the court’s order, he is then guilty of an indirect civil contempt, Flathers v. State, 125 P. 902; Ex Parte Stephenson, 89 Okl.Cr. 427, 209 P.2d 515 (1949). Civil contempt is distinct from criminal contempt.⁵ This distinction has been recognized almost from statehood, Ex Parte Gudenoge, 100 P. 39 (Okla.Cr.1909).

After a party has violated the court’s order, been tried and found guilty of a civil indirect contempt, the court then has the inherent power to enforce its order. This enforcement is both coercive and remedial in nature. Shillitani v. U.S., 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966).⁶ Acting under this power, the court must imprison the violator in a municipal or city jail⁷ for a time certain⁸ with the clear understanding that the violator may be released at any time upon his voluntary compliance with the court order he initially refused to obey.⁹

Under these conditions, the court order committing the violator to jail is exec-utory — it is not punitive. Flathers. The order of commitment is coercive — it is not punitive. It is singularly designed and intended to force the violator’s compliance with the court's order.

Under these conditions, incarceration for civil indirect contempt may continue only as long as the violator chooses continuous disobedience to the court’s order or until the time period established by the court has been served. It is the violator’s ability to end the imprisonment by compliance that is the distinguishing factor between civil contempt and that of a criminal contempt or crime. In the criminal contempt or criminal act, the sentence of imprisonment imposed for the “crime” must continue until the pronounced sentence is completed. A person serving a sentence for a criminal contempt or act is by statute allowed credit upon his sentence,¹⁰ which can shorten the imprisonment.

While “contempt” proceedings are an inherent power of the court to enforce its orders, Shillitani, this power may be limited by constitution or statute. However, in Oklahoma, neither the Constitution, Art. 2 § 25, nor the statute (the act in which it appears) specifically defines “contempt” as a crime.¹¹ That statutes involving contempt have been placed in the statutory title on prisons is not controlling. See WRG Construction Co. v. Hoebel, 600 P.2d 334 (Okla.1979); Green v. Green, 309 P.2d 276 (Okla.1957).

Title 57 O.S.1981 § 65, providing credits for prisoners “convicted of a crime,” is hence inapplicable in these proceedings.

We here emphasize Harber’s imprisonment is for the civil offense of indirect contempt. He was not convicted of a crime, nor was he sentenced to serve a period of incarceration for a statutorily stated criminal act or offense which would or could constitute a crime. Notwithstanding the erroneous use of the word “crime” in the Judgment and Sentence, plaintiff Harber was imprisoned for Indirect Contempt of Court rather than any criminal act. The trial court sentenced him to an executory remedial sentence resulting from his failure to do an act ordered by the trial court. Harber can terminate his imprisonment at any time he chooses to obey the trial court’s order.

The trial court is hereby directed to cause the Commitment for Punishment of Charles C. Harber in C-77-69 to be conformed to the Judgment and Sentence of the District Court of Tulsa County by striking the words “flat time” from said commitment. The addition of the words “flat time” are an impermissible addition of a prosecutorial nature in a civil matter not involving any crime.

Harber is not, while being confined for civil indirect contempt, entitled to credits earned during confinement under criminal statutes of this state. To hold otherwise would constitute and condone an impermissible infringement of the legislature abridging the power of the court to enforce its own orders.

DOOLIN, C.J., and LAVENDER, ALMA WILSON and SUMMERS, JJ., concur. HARGRAVE, V.C.J., concurs in result. HODGES, OPALA and KAUGER, JJ., dissent.

* RAPP, Special Justice (appointed for SIMMS, J., who disqualified).

1 . The record here is not clear, but it appears the trial court sentenced Harber under 21 O.S.Supp. 1984 § 566, which states:

Unless otherwise provided for by law, punishment for direct or indirect contempt shall be by the imposition of a fíne in a sum not exceeding Five Hundred Dollars ($500.00) or by imprisonment in the county jail not exceeding six (6) months, or by both, at the discretion of the court.

2 . “Flat time,” as used in the argot of the criminal sphere of the law, conveys a distinct and clear message to the person in charge of a prisoner’s confinement that the prisoner’s term of confinement is to be served as imposed by the court without the benefit of statutory time reduction allowances provided in criminal sentences for work, blood donations, etc. See 57 O.S.1981 §§ 20, 65.

3 . 57 O.S.1981 §§ 20, 65.

4 . Art. 2 § 25, Oklahoma Constitution, guarantees a jury trial in such matters.

5 . Direct contempt is sui generis. Sullivan v. State, 419 P.2d 559 (Okl.Cr.1966).

6 . See also Ex Parte Robinson, 19 Wall 513, 514, 19 L.Ed. 205 (S.Ct. 1873), stating, "The power to punish for contempt is inherent in all courts and existence is essential to the preservation of order in judicial proceedings.”

7 . Brown v. State, 209 P.2d 715, 720 (Okla.Crim.App.1949). See Ricketts, Indirect contempt in Oklahoma, 27 Okla.L.R. 213.

8 . This period must be definite. See Ricketts, supra, note 68.

9 . See Rickets, supra, note 67.

10 . See supra, footnote 3.

11 . But fee 21 O.S.1981 § 26. This section states:

A criminal act is not the less punishable as a crime because it is also declared to be punishable as a contempt.