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 
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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.