NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FIL ED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT TJADA T. SMITH, ) ) Appellant, ) ) v. ) Case Nos. 2D12-5937 ) 2D12-6016 STATE OF FLORIDA, ) ) CONSOLIDATED Appellee. ) ) Opinion filed August 8, 2014. Appeal from the Circuit Court for Hillsborough County ; Martha J. Cook, Judge. Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge. In this consolidated appeal, Tj ada T. Smith appeals adjudicat ions of guilt for contempt of court and the s entences imposed thereon in two cases. The State concedes reversible error as to o ne of the two cases. We rever se the adjudications of- 2 - guilt and sentences in both ca ses due to fundamental error that occurred as a result of a legally deficient order to show cause in this indirect criminal contempt proceeding. Apparently, Ms. Smith reported to law enforcement that she wa s the victim of one or more offenses allegedl y committed by a Mr. Brown, whi ch resulted in the State filing charges against him in eith er or both trial court case n umbers 12-CF-5210 and 12- CF-5263. The trial court clerk's docketing statements for thos e cases reflects that the charge in case number 12-CF-5210 was aggravated assault with a deadly weapon and the charges in case number 12- CF-5263 were throwing a deadly mi ssile at, within, or into a vehicle; burglary of a conveyance with assault or batter y; and aggravated battery with a deadly weapon. Ms. Smith d id not appear on September 24 , 2012, the day that a trial was scheduled in case num ber 12-CF-5210 and perhaps in ca se number 12-CF5263. The State dropped the charges i n both cases. It immediately initiated contempt proceedings against Ms . Smith, apparently by making an oral motion for an order to show cause. The appellat e record reveals only limited information about how the State pres ented its motion. A tran script of the proceeding or proceedings at which the State made its or al motion and present ed its argument for t he issuance of an order to show cause was not included in the appellate record. It app ears that the State did not file a written motion, an a ffidavit, or any sort of verifie d pleading in support of or requesting the issuance of an or der to show cause. Several day s after the scheduled trial, the trial court issued a single order to show cause dire cted to Ms. Smith. That order is styled as "State of Flo rida [v. Brown]," case numbers 2012-CF-5210 and 2012-- 3 - CF-5263. Significantly, the order to show cause makes no refer ence to "contempt." The body of the order states, in pertinent part: THIS CAUSE coming on for approval of the Court, and the Court being advised by T he State of Florida that the State's Witness, Tjada Theres a Smith, was served with a subpoena on August 2nd, 2012 for Jury Trial the week of September 24th, 2012 by CSA #3455. On the referenced subpoena date; September 24t h, the witness failed to appear before this court for jury trial it is ORDERED AND ADJUDGED that the said Tjada Theresa Smith, is to appear . . . and show cause why she failed to appear. A hearing on the order to show c ause was held on November 1, 2012. Ms. Smith attended this hearing with her attorney. No evidence was introduced and no testimony was presented by either the State or Ms. Smith during the portion of the hearing concerning Ms. Smith's f ailure to appear. Ms. Smith's attorney argued that Ms. Smith was not served with the subpoena and thus she did not wil lfully and knowingly fail to appear. The trial court indica ted that the return of servic e was part of the court file 1 and concluded that the defense was not legally sufficient. It orally found that Ms. Smith "failed to appear as noticed on the date and time in question w hich appeared to be September 24, 2012 at 8:00 for a jury trial [in] the cause [Bro wn,] case number 12- 5210." Based on the foregoing fi nding, the court determined "[ t]hat as a consequence

1 The initial record on appeal, whi ch included a first supplement al record, contained little from Mr. Brown's criminal court files. The cr itical subpoena and related return were not in the initial record. Because of this and oth er deficiencies in the appellate record, this court sua sponte ordered the record supp lemented. The second supplemental record, which was provided in response to our orde r, includes copies of two subpoenas for deposition direct ed to Ms. Smith and returns of service for those subpoenas, but it does not include a copy of the subpoena for t rial and the related return of service. Thus, the reco rd contains no evidence that Ms. Smith was ever served with a trial subpoena.- 4 - she is in contempt of court." The trial court did not mention case number 12-CF-5263 in its oral finding, despite the fa ct that the prosecutor had list ed the three counts in that case when asked by the trial cour t to describe the nature of th e underlying charges. 2 After the trial court determined that Ms. Smith was in contem pt of court, the State requested that the cour t impose some period of jail t ime. The court then heard Ms. Smith's testimony with respect to mitigation and the sanctions to be imposed. It delayed sentencing to give Ms . Smith an opportunity to make arrangements for the care of her young children. A sentencing hearing was held on November 14, 2012. At that hearing the prosecutor request ed that Ms. Smith be sentenced to either a few days in jail or a short term of probation. The tr ial court orally pronounced tha t Ms. Smith was to be sentenced to sixty days' probat ion and that during her probatio n she was to complete a domestic violence course. On the same day as the sentenc ing hearing, the trial court re ndered a written "Judgment and Sentence" i n case number 12-CF-016434 and a separate written "Judgment and Sentence" in case number 12-CF-016436, which were not the same case numbers as the case numbers for the underlying criminal ch arges against Mr. Brown. Apparently, the clerk o f the trial court had created ne w court files with new case numbers for the purpose of the c ontempt proceedings, but the pa rties in this appeal

2 When asked the nature of the ch arges, the prosecutor responded "Count One throwing a deadly missile w ithin and to a vehicle. Count T wo burglary of a conveyance with assault or ba ttery. Count Three aggravated bat tery with a deadly weapon." These charges track t hose listed in the trial court c lerk's docketing statement for case number 12-CF-5263.- 5 - have not explained, and the record does not reveal, the correla tion of the new case numbers to the case numbers for the underlying charges against Mr. Brown. While both of these judgments listed the c harges against Ms. Smith as "con tempt of court," they did not indicate whether the trial c ourt adjudicated Ms. Smith guil ty or whether it withheld adjudication. Additionally, nei ther judgment contained "a reci tal of the facts constituting the contempt of which the defendant [had] been found and adjudi cated guilty." Fla. R. Crim. P. 3.840(f). 3 After Ms. Smith's notices of appeal were filed in each of the se cases, the trial court rendered a separat e single order of probation t hat adjudicated her guilty of "contempt of court" in the two separate cases. The trial court never identifi ed the type of contempt for whi ch Ms. Smith was adjudicated guilt y. However, in this district when a subpo enaed witness is not tardy, but actually does not appear at a court proceeding, any effort to bring the missing witness into court to establish that her nonappearance was an a ct of willful contempt must be addressed under the rule s applicable to indirect crimin al contempt. See Kelley v. Rice, 800 So. 2d 247, 253 (Fla. 2d DCA 2001). 4 This is true because the

3 Failure to comply with rule 3.840( f) is not necessarily reversi ble error, but, as this case demonstrates, it can result in a record that is co nfusing. See Gidden v. State, 613 So. 2d 457, 460 (Fla . 1993) (addressing the predeces sor to rule 3.840(f), the court stated that "the rule's purpose is fulfilled when suffici ent oral findings are made on the record").

4 But see J.D.J. v. State, 120 So . 3d 229, 230 n.1 (Fla. 4th DCA 2013) (opining that, absent an adequat e excuse for nonappearance, a d efendant's failure to appear may be summarily punished as direct criminal contempt an d recognizing that in Kelley the Second District disagr eed with the Fourth District's position on this point); Speer v. State, 742 So. 2d 373, 373 (Fla. 1st DCA 1999) (opinin g that the failure to appear in court pursuant to a court o rder can constitute direct criminal contempt); Porter v. Williams, 392 So. 2d 59, 60 (Fla. 5th DCA 1981) (same ); James v. State, 385 So. 2d 1145, 1145 (Fla. 3d DCA 1980) (explaining that an attorn ey's failure to appear at a scheduled court hearing "may be a direct criminal contempt or , if explained, may be- 6 - witness is not present in the c ourtroom to allow for a summary proceeding and the acts that may or may not make t he nonappearance a willful contempt n ecessarily occurred outside the courtroom. The State concedes that because the record does not reflect t he reason Ms. Smith was found in contempt i n one of the two cases, the "o rder" in the "second" case must be vacated. Unfortunat ely, on this record, it is not entirely clear which case number should be considered the "second" case. One difficulty in making this determination arises from the sh ift in case numbers. Another d ifficulty arises from the confusion in the record regarding which of Mr. Brown's cases wa s set for a trial and required Ms. Smith's testi mony as the victim. Without regard to the error that the State concedes, it is cl ear to us that the contempt proceedings were fundamentally flawed from the mom ent of their initiation by the State. Fundamental error o ccurred at that early stage o f the proceeding with the issuance of a legally deficient order to show cause. See Mix v . State, 827 So. 2d 397, 399 (Fla. 2d DCA 2002). Rule 3.840 governs the prosecution of indirect criminal contempt proceedings. With respe ct to orders to show cause, it provides: A criminal contempt, excep t as provided in rule 3.830 concerning direct contempts , shall be prosecuted in the following manner: (a) Order to Show Cause. The judge, on the judge's own motion or on affidavit o f any person having knowledge of the facts, may issue and si gn an order directed to the defendant, stating the essential fa cts constituting the crimina l

shown not to be contemptuous"). S ee also Martinez v. State, 79 9 So. 2d 313, 314-15 (Fla. 2d DCA 2001) (recognizing a split in authority as to whet her a failure to appear constitutes indirect criminal c ontempt rather than direct crimi nal contempt, but declining to decide whether t he appellant's failure to appear was direct or indirect contempt because reversal was required due to lack of proof).- 7 - contempt charged and requiri ng the defendant to appear before the court to show caus e why the defendant should not be held in contempt of court . The order shall specify the time and place of the heari ng, with a reasonable time allowed for preparation of the defense after service of the order on the defendant. Fla. R. Crim. P. 3.840(a). Here, it is arguable that the or der stated the essential fact s constituting the criminal contempt charged, but i t did not direct Ms. Smith that she was to show cause why she "should not be held in c ontempt of court" and nothing o n the face of the order indicated that she was being c harged with criminal contempt of court. Without regard to these deficiencies, predicating the finding of contempt on the State's unsworn motion for an order to show cause amounted to fundamental error in this ca se. See Proctor v. State, 764 So. 2d 752, 753 (Fla. 2d DCA 2000). We reach this c onclusion because the criminal contempt pro ceeding was initiated by the State, rather than by the judge, and the essential facts were not s upported by an affidavit, as requ ired by rule 3.840(a), or a suitable alternative to support t he order to show cause, such a s a verified pleading. See Starchk v. Wittenberg, 411 So. 2d 1000, 1001 (Fla. 5th DCA 1982) (holding that an unverified pleading was insu fficient to support the request for an order to show cause, but observing that "[s]ince a pros ecuting attorney is allowed t o verify an information on sworn facts given him by a per son with personal knowledge, such verification has been held sufficient when the prosecuti ng attorney is charging a cri minal contempt of court"). Based on this fundamental error, w e reverse Ms. Smith's adjudic ations of guilt for contempt of court and her sentences on those adjudications in b oth cases. Our reversal- 8 - is without prejudice to the init iation of new proceedings that conform with rule 3.840. 5 See Mix, 827 So. 2d at 399. Reversed and remanded.

KELLY and LaROSE, JJ., Concur.

5 In the likely event that Ms. Smi th has served her sentences in full, she may not be resentenced. Additionally, service of her sentences does not render this appeal moot. See Sramek v. Sta te, 946 So. 2d 1235, 1236 (Fla. 2d DCA 2007).