NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



MAURICE ARSENIO VIDANA,            )
                                   )
           Appellant,              )
                                   )
v.                                 )                   Case No. 2D17-5061
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed January 16, 2019.

Appeal from the Circuit Court for
Hillsborough County; Thomas P. Barber,
Judge.

Howard L. Dimmig, II, Public Defender, and
Timothy J. Ferreri, Assistant Public
Defender, Bartow, for Appellant.

Ashley Brooke Moody, Attorney General,
Tallahassee, and Jonathan P. Hurley,
Assistant Attorney General, Tampa, for
Appellee.



KHOUZAM, Judge.

             Maurice Arsenio Vidana appeals his conviction and sentence for direct

criminal contempt arising from his failure to participate in depositions. Because the
court failed to make findings that would support an adjudication of direct criminal

contempt, we reverse and remand with directions to vacate Vidana's conviction.

              Vidana was twice subpoenaed to attend a deposition in a case where he

was an alleged victim of a shooting. On both occasions, he refused. At the hearing on

the order to show cause why Vidana should not be held in contempt, several witnesses

testified. An attorney testified that Vidana was an alleged victim in the case against his

client. Twice the attorney had a subpoena issued to depose Vidana, and twice Vidana

failed to show up to the scheduled deposition. An investigator with the State Attorney's

Office testified that he personally served Vidana, who was in jail at the time, with both

subpoenas. A court reporter testified that she was hired for one of the depositions, and

the deposition did not happen because the witness refused to come. Three deputies

who worked at the jail testified that they attempted to take Vidana to the depositions but

he refused. The first time he stated that he was ill, but nursing staff concluded that he

was physically able to go.

              Based on this evidence, the court found Vidana guilty of direct criminal

contempt. The contempt order stated that "[t]he [c]ourt, after receiving physical

evidence, hearing testimony, and the argument of counsel, found the Defendant [g]uilty

as charged." The written order did not—and, considering the evidence presented, could

not—recite specific facts that would support the adjudication of guilt for direct criminal

contempt.

              Florida Rule of Criminal Procedure 3.830 addresses direct criminal

contempt and provides, in relevant part:

              A criminal contempt may be punished summarily if the court
              saw or heard the conduct constituting the contempt



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              committed in the actual presence of the court. The judgment
              of guilt of contempt shall include a recital of those facts on
              which the adjudication of guilt is based.

"The supreme court [has] explained that for conduct to be considered direct criminal

contempt, 'all of the acts underlying the contemptuous conduct must be committed in

open court in the presence of the judge.' " Brown v. State, 

, 372 (Fla. 2d

DCA 2017) (quoting Plank v. State, 

, 606 (Fla. 2016)). "If the judge

needs to rely on statements and testimony from others regarding their knowledge about

the contemptuous acts, the misconduct is no longer considered direct criminal contempt

because additional testimony or explanation is necessary." 

at 606). In other words, "[w]henever a judge must take testimony during a criminal

contempt proceeding or rely on additional evidence not directly observed by the trial

judge, the proceeding is no longer direct criminal contempt but becomes indirect

criminal contempt." 

at 607).

              The evidence in the instant case could not support Vidana's conviction for

direct criminal contempt—even if the court had made factual findings as required by rule

3.830. Vidana's contemptuous conduct took place at the jail, not in open court or in the

judge's presence. The court did not see or hear the conduct. Rather, the court took

testimony from the attorney who had the subpoena issued, the investigator that served

Vidana with the subpoenas, the deputies who tried to take Vidana to the depositions,

and the court reporter who was hired for one of the depositions. It was this testimony

on which the court relied to find Vidana guilty. Because the trial judge did not directly

observe Vidana's allegedly contemptuous conduct but rather needed to rely on others'




                                            -3-
testimony, it was an abuse of discretion to find Vidana in direct criminal contempt.

Accordingly, we reverse and remand with directions to vacate Vidana's conviction.

             Reversed and remanded with directions.


BADALAMENTI, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.




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