The Florida Supreme Court says a former Miami Republican state senator's failure to show up for court hearings related to the custody of family dogs in his bitter divorce four years ago doesn't constitute "direct criminal contempt" of court because there was a lack of evidence that he knowingly failed to attend the hearings.
Rather Alex Diaz de la Portilla's defiance of a court order constituted a more passive act, known as "indirect criminal contempt," the court said in its 18-page ruling, released Thursday. Download Sc14-1625
During the divorce proceedings, Diaz de la Portilla was ordered to hand over one of two family dogs -- Elvis and Priscilla -- to his then-wife, lobbyist Claudia Davant, but failed to do so. (Diaz de la Portilla is brother to current Miami Republican Sen. Miguel Diaz de la Portilla.)
In 2011, Alex Diaz de la Portilla didn't show up for two court hearings, where Davant asked a judge to hold her husband into contempt of court for not delivering the couple's dog as ordered. After the second time, the trial court judge issued a warrant for Diaz de la Portilla's arrest and sought to hold him in direct criminal contempt, saying he was "thumbing his nose" at the authority of the court.
But the Florida Supreme Court -- agreeing with the First District Court of Appeals -- said people held in contempt have to be given the opportunity for a hearing before such a finding of guilt is made. The court said there was a lack of evidence that Diaz de la Portilla was notified that he was required to attend the hearings in person.
"When an individual fails to appear, the court is not capable of making the necessary inquiries of the absent individual, and likewise is unable to hear evidence of excusing or mitigating circumstances. The rules of criminal contempt must be strictly followed so as to protect the due process rights of the defendant," Justice Fred Lewis wrote in the 6-1 opinion, with Justice Charles Canady dissenting.
Canady said the court shouldn't have even considered the case, because the Supreme Court was only asked for its advisory opinion on when direct-versus-indirect criminal contempt applies. The First District Court of Appeal had deemed the issue "of great public importance" because there had been conflicting precedent set by Florida's trial courts and district courts of appeal.
"This court should not be in the business of issuing advisory opinions except as specifically authorized by the Florida Constitution," Canady wrote in his dissent.
What does this mean for Diaz de la Portilla? His contempt-of-court charge gets kicked back to the trial court.