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Appellant then presented his own testimony to the effect that
he obtained the February 19th date over the telephone ~•hile his
client was listening, repeated it out loud, and marked his calendar
accordingly. He also testified that a third deputy clerk often gave
hearing dates, but he did not know which girl talked with him on
the phone. The client testified that he heard-Appellant repeat,
"1:30 P. M. on the 19th" during the call.
A motion to dismiss was-again denied,_the Court took the case
under advisement, and later,~in open court, conducted sentencing-_
proceedings.
The evidence in this case fails to meet the burden of proof
necessary to sustain a conviction of an indirect contempt. Aside
from the failure to prove that the error was made by Appellant instead
of the deputy clerk, there is a failure to prove that-. Appellant, even
if iie made the error, was contemptuous of the Court-in doing so.
In adjudicating Appellant guilty, the Court said:
"The Court heard a case involving you for contempt of court for_
setting a~case on a Monday, being that you knew that the Court
in seven or eight years had never had a case on Monday, Small
Claims Court, and visiting as frequently as you do, the Court
I felt like that you knew that we .weren't having it. And the
defendant was very--or the plaintiff--the defendant in the
particular case was very upset and had a lot of verbal comments
about- coming to court and losing $50.00.
So, the Court really felt-that you erred in doing this and the
Court felt that you knew better than this. I don't know what _ ~
your intentions were.''
Such a statement shows that the Court felt Appellant "erred'' but the
Court didn't determine that the error-was intentional. Accordingly, f
the judgement and sentence must be and they are hereby set aside and - -
the prosecution is dismissed. -
DONE and ORDERED in Stuart. Florida, this September ~ 1979.
e Ju ge
Copies furnished
Hon . E . P . DeFries t , Jr . 4fit~030
Assistant State Attorney Gerald Lefebvre
L. A. O'Laughlin,- Esquire
Ralph L. Flowers, Esquire 1919 CEP 24 g: 57
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R06 POITitA~
_ q.ERK CfRWIT C~1 T
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