Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT TAWON DONTE RILEY, ) ) Appellant, ) ) v. ) Case No. 2D17-2534 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed January 31, 2020. Appeal from the Circuit Court for Sarasota County; Charles E. Roberts, Judge. Howard L. Dimmig, II, Public Defender, and Carol J. Y. Wilson, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Blain Goff, Assistant Attorney General, Tampa, for Appellee. SMITH, Judge. Tawon Donte Riley appeals his judgment and sentence for possession of marijuana with intent to sell within 1000 feet of a municipal park and resisting a law enforcement officer without violence. During Mr. Riley's trial he was convicted of direct criminal contempt for his disruptive behavior during voir dire. Among other issues, Mr. Riley contends the evidence the trial court relied upon in finding him in contempt was insufficient. We affirm the direct criminal contempt based upon a tipsy coachman analysis and write only to address the improper method employed by the trial court below. We further affirm the judgments and sentences without comment. On the morning of Mr. Riley's jury trial, prior to voir dire, Mr. Riley asked the trial court to discharge his trial counsel. Finding no adequate basis to do so, the trial court denied Mr. Riley's request and the trial commenced. The record reflects Mr. Riley repeatedly disrupted the voir dire process and the trial court repeatedly instructed Mr. Riley to remain quiet. Nevertheless, while the attorneys conferred with the trial court at side bar, the trial judge saw Mr. Riley communicate with the jury venire and partially heard what he thought was an inappropriate comment. The prospective jurors1 were then escorted outside the courtroom. The trial court relied on statements from the bailiffs present in the courtroom to fill in the gaps of what had transpired, which, evidently, involved Mr. Riley calling one of the potential jurors "racist." The trial court then gave Mr. Riley the opportunity to show cause why he should not be held in contempt. Mr. Riley did not deny making the statement, but instead said, "[T]hat juror, she prejudged me. She deliberately stated that she was going to prejudge me and find me guilty based on nothing. On nothing. Based on my appearance because I'm black I guess." The trial court explained the voir dire process to Mr. Riley and instructed him to not speak to members of the jury panel. What proceeded from there can only be described as argumentative on Mr. Riley's part, and the trial court found Mr. Riley's 1The jury had not yet been impaneled. -2- clear intent in making the comment was to sabotage the jury selection. The trial court further found Mr. Riley to be in direct criminal contempt and sentenced him to ten days in the county jail. The standard of review of a direct criminal contempt conviction is abuse of discretion. Michaels v. Loftus, 139 So. 3d 324, 327 (Fla. 3d DCA 2014). "While a judgment of direct contempt is entitled to a presumption of correctness, it must be supported by the record." Smith v. State, 954 So. 2d 1191, 1194 (Fla. 3d DCA 2007). One's intent to act in contempt must be proven beyond a reasonable doubt. Haas v. State, 196 So. 3d 515, 523 (Fla. 2d DCA 2016). "Intent, absent a statement thereof or an admission by the accused . . . must be inferred from the acts of the accused and the surrounding circumstances." Id. (quoting Garcia v. Pinellas County, 483 So. 2d 443, 444-45 (Fla. 2d DCA 1986)). "Florida Rule of Criminal Procedure 3.830 gives the trial court the authority to punish criminal contempt 'summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court.' " See Michaels, 139 So. 3d at 331 (quoting Fla. R. Crim. P. 3.830). We are mindful of the trial court's frustrations with Mr. Riley's insolence during voir dire and his improper communications with the jury venire. In this case, however, the trial court did not fully see or hear the conduct constituting the contempt because the trial court was engrossed in conversation with counsel, discussing jury selection. The error occurred when the trial court relied on the unverified statements of the bailiffs as the sole evidence of Mr. Riley's direct criminal contempt. Additional evidence supporting a direct contempt judgment is required when a trial court does not personally witness or hear the allegedly contemptuous conduct. See Barr v. State, 334 -3- So. 2d 636, 636 (Fla. 2d DCA 1976) (reversing direct contempt judgment where trial court did not hear defendant utter profanity, although court staff did), receded from on other grounds by Martinez v. State, 339 So. 2d 1133 (Fla. 2d DCA 1976); Davila v. State, 100 So. 3d 262, 263-64 (Fla. 3d DCA 2012) (reversing direct contempt judgment and sentence where trial court did not see or hear the defendant state a profanity, but was informed by a court deputy). And so, the trial court's basis for holding Mr. Riley in direct contempt was insufficient under rule 3.830. However, the record establishes that the trial court previously instructed Mr. Riley to be silent, a directive with which Mr. Riley was apparently incapable of complying.2 Thus, the mere fact that Mr. Riley communicated at all with the jury venire, which the trial court personally observed, supports a finding of direct criminal contempt under rule 3.830. See Michaels v. State, 773 So. 2d 1230, 1232 (Fla. 3d DCA 2000) (affirming trial court's finding of defense counsel's direct contempt where, "[i]n addition to the admonition concerning speaking objections, the trial judge warned [counsel] repeatedly about his outbursts, his constant tendency to speak out of turn in the presence of the jury, and his refusal to lower his voice during side bar conferences"); Woodie v. Campbell, 960 So. 2d 877, 878 (Fla. 1st DCA 2007) (holding trial court's finding of direct contempt was unsupported because the judge did not directly observe or hear the defendant's profane comment). Therefore, we utilize the tipsy coachman doctrine and find no abuse of discretion by the trial court. See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999) ("[I]f a trial court reaches the 2Mr. Riley was sentenced to ten days in jail and ankle shackled as a result of the direct contempt. We also find no error by the trial court in employing these drastic measures given Mr. Riley's repeated contemptuous behavior. -4- right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record."). Affirmed. KHOUZAM, C.J., and LUCAS, J., Concur. -5-