Fleeting Expletive = 179 Days in Jail

Yes, its Polk County again… Chris Wilson reports on Judge Dale Durrance’s latest exploits, as does the Lakeland Ledger.

Joseph Javaun Woods was on probation for possession of marijuana, and was arrested for fleeing to elude a law enforcement officer. Since there was a gun in the car, he was also charged with carrying a concealed weapon and being a felon in possession of a firearm. Lets face it, Mr. Woods is not a perfect little innocent angel, but there is a key factor here — he might not be an angel, but he isn’t a felon either. The only charge on his record was the misdemeanor possession charge. See Woods v. State, 2007 Fla. App. LEXIS 13954 (Fla. 2nd DCA 2007). (Opinion available here)

Mr. Woods’ first appearance was broadcast from jail by video into Durrance’s courtroom. Judge Durrance told Woods that he was going to be held without bail because he was a felon in possession of a firearm. Normally, that might be appropriate. However, when Woods told Durrance that he had no prior felony convictions, just a single misdemeanor, Durrance, in an act of complete dismissiveness for the defendant, “told him his lawyer would get that straightened out for him and asked for the next defendant to be brought forward.” (source)

In other words, Durrance didn’t care what the facts or the law said. Mr. Woods was going to jail, without bail.

As Mr. Woods was being hauled away, without bail, he then had the audacity to mutter the word “shit.” (case). The transcript of the exchange appears below:

THE COURT: Joseph Woods. Mr. Woods you’re being held on a fleeing to elude a law officer, no bond. Driving with a suspended license, no bond. Carrying a concealed firearm in the commission of a felony, [*4] no bond. Possession of a firearm by a convicted felon, no bond. You’ve already asked for a Public Defender and they’ve been appointed to represent you.

THE DEFENDANT: Your Honor?

THE COURT: Sir?

THE DEFENDANT: I have–I have no felony how can I be a convicted felon? I never had a felony in my life. How can I–how can it be concealed weapon by a convicted felon?

THE COURT: Okay. You’re not on felony probation?

THE DEFENDANT: I–I–I’m–no time–I don’t have a felony, I have a second degree misdemeanor on marijuana.

THE COURT: Okay. You’re not on any probation?

THE DEFENDANT: Yes I’m–I’m on probation.

THE COURT: Okay you’re on probation. Okay.

THE DEFENDANT: Yes I’m on probation.

THE COURT: Alright. Well that’s the reason we have a no bond. Who’s your probation officer?

THE DEFENDANT: Mr. Robert Sparkman. But I’m asking about the felon–like convicted felon, I’m not a convicted felon.

THE COURT: Okay. Well your lawyer will get all that straightened out for you. Leave him under no bond with a showing of a violation of probation, notify his probation officer.

THE DEFENDANT: So what are you saying?

THE COURT: Okay. Thank you sir.

THE DEFENDANT: The state crooked–

(Whereupon another case is called)

THE DEFENDANT: That what he saying.

THE BAILIFF: Be quiet.

THE DEFENDANT: Shit.

THE COURT: Okay call him back. Let me have that last one.

(Whereupon The Court addresses a different defendant)

THE COURT: Bring back Mr. Woods.

THE BAILIFF: Woods.

THE COURT: Mr. Woods–

THE DEFENDANT: I’m right here.

THE COURT: –as you were leaving the courtroom you said an obscene and a disrespectful and a rude comment in court–in open court.

THE DEFENDANT: I asked you what was you saying.

THE COURT: You want to–you want to–you want to show cause why I shouldn’t hold you in contempt for that?

THE DEFENDANT: I just asked what was you saying. I–I’m asking was is you saying–what are you saying? I don’t get what you’re saying–

THE COURT: No sir. No. I heard what–

THE DEFENDANT: –I don’t got no–I don’t have a lawyer so how can my lawyer explain something to me?

THE COURT: Let me explain Mr. Woods. I saw you and I heard you–what you said and we have it on film and on audio. So we’ve got a film of it. You want to show cause why I shouldn’t hold you in contempt?

THE DEFENDANT: No you shouldn’t–no you should not hold me in contempt.

THE COURT: Why shouldn’t I?

THE DEFENDANT: I’m–I was aggravated. I’m very aggravated at this time right now.

THE COURT: Okay. You’re agitated and you’re aggravated, that’s no excuse for showing that rude and disrespectful behavior. I find that you’re in contempt. I’ll adjudicate you in contempt. I’ll sentence you to 179 days in the county jail. Get him out of there. See Woods v. State at 3-5.

After that, the Court entered a “snap-out” form. Essentially a form order sending someone to jail.

In reversing Judge Durrance, the Court of Appeals slammed the entire 10th Judicial Circuit (yep, good ol’ Polk County!) for this unconstitutional practice — and it isn’t the first time that the Second DCA has had to do so.

There has been a long-standing practice in the Tenth Judicial Circuit of entering final orders in criminal cases on “snap-out” forms. This case is only the most recent in a series of cases in which such forms have been used improperly. The use of such forms is particularly inappropriate when the form is used for a purpose other than the one for which it was created. Here the court used a standard form intended to record the results of first appearance hearings to act as a judgment and sentence on a new and distinct criminal charge. If this court had the power to do so, it would order the Tenth Judicial Circuit to cease and desist in the use of this type of form final order. The power to regulate this matter of procedure, however, lies with the supreme court. In this case, we simply reverse yet another misused form that may have provided an economic benefit to the circuit court, but only at the expense of an individual’s legal rights. (citation omitted) See Woods v. State at 6-7.

The Court of Appeals then cited EIGHT cases in which it had reversed this practice. Seven of them were reversals of Polk County judges.

The Court of Appeals didn’t rest there though.

[T]his case is an example of the Tenth Judicial Circuit’s apparently regular practice of denying bond to anyone who could be subject to a violation of probation, whether felony probation or misdemeanor probation. The legal authority to do this is not entirely obvious to this court. Other courts within this district do not seem to share this interpretation of the law. This practice is questionable for several reasons.

It appears from our record that at the time of the first appearance hearing, Mr. Woods had not been charged with violating his probation. The court was thus considering the propriety of pretrial detention or release in the context of the new charges. Article I, section 14, of the Florida Constitution provides:

Pretrial release and detention.–Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.See Woods v. State at 7-8.

The Appeals Court went on to explain that there are circumstances in which a court may order pre-trial detention of a suspect, and explained them (as if Judge Durrance was unaware of them).

[T]he court must “conduct a hearing to determine pretrial release” unless the State has filed a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132. Even if the State seeks pretrial detention, [The Florida Constitution] still requires the court to permit pretrial release upon reasonable conditions unless no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process.

Even if Mr. Woods had been charged with a violation of probation rather than or in addition to a new offense, detention without bail or other conditions is not automatic.See Woods v. State at 8.

The Appeals court still did not rest there. I get the impression that the Second DCA is getting a little sick of either Judge Durrance or the 10th Circuit in general. The Appeals court said that even though contempt might have occurred, using a standard form with “the court clerk’s scribblings” was insufficient. Additionally, the Second DCA seems to suggest that Durrance overreacted a bit.

The ability to summarily punish a direct criminal contempt without the protections normally accorded to the accused, therefore, depends in part upon the egregiousness of the accused’s behavior. As discussed further in this opinion, we are not convinced that Mr. Woods’ use of a single profane word during a closed-circuit television hearing constituted direct criminal contempt, much less the type of misconduct requiring immediate punishment to prevent a demoralization of the court’s authority. Certainly, the trial court never made a finding that this was the case.See Woods v. State at 13.

This appears to be the first case involving profanity before a video camera in a room that is actually inside a jail. For the purposes of this case, we assume without deciding that misconduct at the opposite end of a closed-circuit television network, which occurs miles away from the presiding judge, can constitute direct criminal contempt if the trial judge saw or heard the misconduct from his or her end of the connection. At a minimum, the use of such equipment for purposes of first appearance would seem to further complicate the issues surrounding this procedurally unusual crime.

From the record, it is obvious that Mr. Woods became upset because the trial court would not explain how he could be charged with being a felon in possession of a firearm when he was not a felon. He did not understand the trial court’s practice to set no bond if someone was on any form of probation. The transcript of these proceedings suggests that Mr. Woods uttered the single word “shit” as he was leaving the proceedings. We cannot tell from this record, however, when or how Mr. Woods said the single word of profanity. We do not know the volume or tenor of his voice. We do not know whether he was looking at the judge on the television set or at the back-door of the room. We do not know whether his comment was directed at the judge, the bailiff, or to no one in particular. We do not know whether there was an audience for this behavior other than the judge and bailiff, or whether Mr. Woods was playing to such an audience. The trial judge characterized the statement as merely “rude and disrespectful behavior.”

We do not question that the use of this word was rude and disrespectful. However, an intent beyond mere rudeness was required before the court could adjudicate Mr. Woods guilty of direct criminal contempt. The trial court had to establish that Mr. Woods’ statement, coupled with his actions, were intended to constitute an imminent threat to the administration of justice. The order contains no recital of facts to support such a conclusion.

We doubt that such an intent can be proven in this case. The record suggests that Mr. Woods’ isolated expletive was spontaneous and not necessarily directed at the judge. Although his actions were inappropriate, in context Mr. Woods’ frustration is somewhat understandable given that he was charged with being a felon in possession of a firearm though he had never been convicted of a felony.See Woods v. State at 17.

The gun charge? Dropped. The gun belonged to the owner of the car, who legally owned it and had a permit for it.

So, Mr. Woods gets his criminal contempt charge reversed — after he serves his 179 day sentence.

If that seems like an awfully strange number, it really is not. If Durrance had sentenced him to 180 days, he would have been entitled to a jury trial. As a member of the Florida Bar, I’ll keep my words soft here and let the reader decide. Did Judge Durrance calculate that a simple muttered “shit” was worthy of exactly 179 days in jail, because 180 would have been too harsh, or did he want to have his decision preserved from the pesky power of the jury?

And Judge Durrance?

The Lakeland Ledger, not exactly a bastion of liberalism, reports:

Durrance finished last among 25 circuit judges with an overall rating of 6.11 out of 10, according to results of The Ledger’s biennial survey of local lawyers.

In 2004, Durrance ranked in the next to the last spot out of 22 judges with an overall rating of 6.35. (source)

He scored a 5.8 for “legal ability and written decisions.” (source)

“Makes no effort to hide his pro-prosecution stance and disdain for defendants,” one lawyer wrote.

“Prime example of why we need to return to sentencing guidelines,” another wrote. “His harsh sentences post trial put a chilling effect on a person’s constitutional right to a jury trial.”(source)

One Response to Fleeting Expletive = 179 Days in Jail

  1. [...] the same backward jurisdiction where a guy who said “shit” because he was going to jail got 179 days for that transgression. This is where a guy who took photos of consenting adults, at their request, for their own personal [...]

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