PROCEEDINGS FOR INDIRECT CRIMINAL CONTEMPT

(a) Petitions for Indirect Criminal Contempt. Nothing in these rules prohibits or limits the right of the court to issue a permanent injunction in lieu of or in addition to any punishment imposed for an indirect criminal contempt.

(1) Proceedings. The Florida Bar’s president, executive director, or UPL standing committee chair may file a sworn petition seeking contempt for a person, firm, or corporation for unlawfully practicing law or failing to pay restitution under this chapter. The sworn petition must contain a prayer for a contempt citation. On receipt of the sworn petition, the court may issue an order to the respondent stating the essential allegations charged and requiring the respondent to appear before a referee appointed by the court to show cause why the respondent should not be held in contempt of the court for the unlicensed practice of law or for the failure to pay restitution as ordered. The referee must be a circuit judge of the State of Florida. The order must specify the time and place of the hearing. A reasonable time must be allowed for preparation of the defense after service of the order on the respondent.

(2) Respondent’s Motions and Answer. The respondent, personally or by counsel, may move to dismiss the order to show cause, move for a statement of particulars, or answer the order by explanation or defense. All motions and the answer must be in writing. A respondent’s failure to file motions or answer is not an admission of guilt of the contempt charged.

(b) Indigency of Respondent. Any respondent who is determined to be indigent by the referee is entitled to the appointment of counsel.

(1) Affidavit. A respondent asserting indigency must file with the referee a completed affidavit containing the statutory financial information required to be submitted to the clerk of court when determining indigent status and stating that the affidavit is signed under oath and under penalty of perjury.

(2) Determination. After reviewing the affidavit and questioning the respondent, the referee will determine whether the respondent is indigent. In making this determination, the referee must consider the applicable statutory criteria used by the clerk of court when determining indigent status and the applicable statutory factors considered by a court when reviewing that determination.

(c) Proceedings Before the Referee. Proceedings before the referee must be in accordance with the following:

(1) Venue. Venue for the hearing before the referee must be in the county where the respondent resides or where the alleged offense was committed, whichever is designated by the court.

(2) Order of Arrest. The court or referee may issue an order of arrest of the respondent if the court or referee has reason to believe the respondent will not appear in response to the order to show cause. The respondent will be admitted to bail in the manner provided by law in criminal cases.

(3) Hearings. The respondent will be arraigned and enter a plea at the time of the hearing before the referee, or prior on request. A subsequent hearing to determine the guilt or innocence of the respondent will follow a plea of not guilty. The date and time of the subsequent hearing will be set at the arraignment. The respondent is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and confront witnesses against the respondent. The respondent may testify in the respondent’s own defense. No respondent may be compelled to testify. A presumption of innocence will be accorded the respondent. The Florida Bar acting as prosecuting authority must prove guilt of the respondent beyond a reasonable doubt.

(4) Subpoenas. Subpoenas for the attendance of witnesses and the production of documentary evidence will be issued in the name of the court by the referee on request of a party. Failure or refusal to comply with any subpoena is a contempt of court and may be punished by the court or by any circuit court where the action is pending or where the contemnor may be found, as if the refusal were a contempt of that court.

(5) Referee. The referee will hear all issues of law and fact and all evidence and testimony presented will be transcribed.

(6) Judgment. At the conclusion of the hearing, the referee will sign and enter of record a judgment of guilty or not guilty. A judgment of guilty should include a recital of the facts constituting the contempt of which the respondent has been found and adjudicated guilty. The costs of prosecution, including investigative costs and restitution, if any, will be included and entered in the judgment rendered against the respondent. The amount of restitution must be specifically set forth in the judgment and must not exceed the amount paid to respondent by complainant(s). The judgment must also state the name of each complainant to whom restitution is to be made, the amount of restitution to be made, and the date by which it must be completed. The referee has discretion over the timing of payments, how those payments are to be distributed to multiple complainants, and whether restitution will bear interest at the legal rate provided for judgments in this state. In determining the amount of restitution to be paid to complainant(s), the referee will consider testimony or any documentary evidence that shows the amount paid to respondent by complainant(s), including cancelled checks, credit card receipts, receipts from respondent, and any other documentation evidencing the amount of payment. Nothing in this section precludes an individual from seeking redress through civil proceedings to recover fees or other damages.

(7) Mitigation and Sentence. Before the pronouncement of a recommended sentence on a judgment of guilty, the referee will inform the respondent of the accusation and judgment and afford the opportunity to present evidence of mitigating circumstances. The recommended sentence will be pronounced in open court and in the presence of the respondent.

(d) Record.

(1) Contents. The record includes all items properly filed in the cause including pleadings; recorded testimony, if transcribed; exhibits in evidence; and the report of the referee.

(2) Preparation and Filing. The referee, with the assistance of bar counsel, must prepare the record, certify that the record is complete, serve a copy of the index of the record on the respondent and The Florida Bar, and file the record with the office of the clerk of the Supreme Court of Florida.

(3) Supplementing or Removing Items from the Record. The respondent and The Florida Bar may seek to supplement the record or have items removed from the record by filing a motion with the referee for that purpose only if the motion is filed within 15 days of the service of the index. Denial of a motion to supplement the record or to remove an item from the record may be reviewed in the same manner as provided for in the rule on appellate review under these rules.

(e) Review by the Supreme Court of Florida. The referee must forward the judgment and recommended sentence on a finding of “guilty” together with the entire record of proceedings to the Supreme Court of Florida for approval, modification, or rejection based on the law. The petitioner or the respondent may file objections, together with a supporting brief or memorandum of law, to the referee’s judgment and recommended sentence within 30 days of the date of filing with the court of the referee’s judgment, recommended sentence, and record of proceedings. A party may seek review of a referee’s denial to supplement or remove an item from the record within 30 days after the court issues its ruling on that matter. Denial of a motion to supplement the record or to remove an item from the record may be reviewed in the same manner as provided for in the rule on appellate review under these rules. A responsive brief or memorandum of law may be filed within 20 days after service of the initial brief or memorandum of law. A reply brief or memorandum of law may be filed within 20 days after service of the responsive brief or memorandum of law.

(f) Fine or Punishment. The punishment for an indirect criminal contempt under this chapter will be a fine, not to exceed $2500, imprisonment of up to 5 months, or both.

(g) Costs and Restitution. The court may also award costs and restitution. Added June 27, 1996, effective July 1, 1996 (677 So.2d 272). Amended: July 17, 1997 (697 So.2d 115); Sept. 24, 1998, effective Oct. 1, 1998 (718 So.2d 1179); March 23, 2000 (763 So.2d 1002); Feb. 8, 2001 (795 So.2d 1); May 20, 2004 (875 So.2d 448); October 6, 2005, effective January 1, 2006 (SC05-206), (916 So.2d 655); December 20, 2007, effective March 1, 2008 (Sc06-736), (978 So.2d 91); November 19, 2009, effective February 1, 2010 (SC08-1890) (34 Fla.L.Weekly S628a) ; amended July 7, 2011, effective October 1, 2011 (SC10-1968); amended May 29, 2014, effective June 1, 2014 (SC12-2234). Amended June 11, 2015, effective October 1, 2015 (SC14-2088); amended March 3, 2022, effective May 2, 2022 (SC20-1467).