On November 5, the Florida Supreme Court issued its opinion in State v. Diaz de la Portilla (SC14-1625) and clarified that failure to appear at a scheduled hearing when required to do so by a court can be punished as indirect criminal contempt and not as direct criminal contempt. Direct criminal contempt is an appropriate sanction when contemptuous conduct occurs in the presence of the court. Indirect criminal contempt is when the contemptuous conduct occurs outside of the presence of the court.

The distinction is important because direct criminal contempt, sometimes referred to as summary criminal contempt, is governed by rule 3.830 of the Florida Rules of Criminal Procedure. That rule provides lower procedural safeguards to a defendant than for a defendant of indirect criminal contempt (governed by rule 3.840, Fla. R. Crim. P.), under the premise that a court is capable of recognizing and punishing criminally contemptuous conduct that it directly observes in a more expedited and summary fashion than conduct it does not observe, as it is unnecessary to present evidence of the contemptuous conduct.

In Diaz de la Portilla, the Supreme Court clarified that direct criminal contempt is not an appropriate proceeding to punish a failure to appear. The Court noted that “treating a failure to appear as direct criminal contempt does not fulfill the purpose of this narrow form of contempt, which applies when a contemptuous act occurs in the presence of the court, is an affront to the court, disrupts and frustrates an ongoing proceeding, and requires immediate action to vindicate the authority of the court.” The Court noted that immediate action to preserve the dignity of a court is not possible where the contemptuous action is a failure to appear. Additionally, the Court pointed out that in a direct criminal contempt proceeding a court would not have personal knowledge of whether a defendant’s failure to appear was knowing or willful, required elements for a conviction of criminal contempt for failure to appear.