RUDOLPH v. STATE

NESBITT, Senior Judge.

The appellant, Robert Alvarez Rudolph, an attorney who was representing a defendant in a criminal case, appeals an order adjudicating him guilty of direct criminal contempt. We affirm.

After numerous warnings both before and during the summation of a four month criminal trial, following an objected-to remark by Rudolph, the trial court issued a verbal order to show cause for direct criminal contempt. After the trial of the underlying case, a contempt hearing was held. At that hearing it was established that prior to summation, the lower court had distributed a form order to the attorneys in the case, advising, in part:

6) Counsel shall avoid using derogatory terms when referring to the defendant, a witness, or opposing counsel and shall not make any disparaging comments about counsel's occupation or performance in court. . . .

Rudolph was making a summation on behalf of his client, discussing the tape-recorded evidence and testimony of a State's witness, when he stated in part:

Power is dangerous and maybe there should be a limit to the power that attorneys have and maybe there should be a limit to the deals attorneys can make and maybe power corrupts. . . .

The prosecutor objected and a sidebar conference was held. The court sustained the objection, observing:

. . .in the context of your discussions with this jury about power and things like that to help link it to being corrupt, basically is a derogatory comment on the prosecution and the lawyers in this case. At the end of this case you and I are going to have a discussion as to why you should not have to show why it is you should be held in contempt of court for violating the Court's order.

At the trial on the show cause order, Rudolph's motion to dismiss was denied. Ultimately, the court found him guilty, but withheld adjudication and fined him $500.00. The court stayed imposition of sentence pending appeal.

Criminal contempt may be based on an act calculated to embarrass, hinder or obstruct the trial court in the administration of justice or which is calculated to lessen the court's authority or dignity. See Thompson v. State, 618 So.2d 781 (Fla. 5th DCA 1993). As observed inThomas v. State, 752 So.2d 679, 684-86 (Fla. 1st DCA 2000):

Rule 3.830, Florida Rules of Criminal Procedure, does not define criminal contempt. Case law establishes that a party may be held in direct criminal contempt for the violation of an order of the court or for an act which is facially contemptuous. See Lawrence v. Lawrence, 384 So.2d 279 (Fla. 4th DCA 1980). Thus, the definition of criminal contempt is not restricted to a violation of an order per se.

Here, the trial judge had given clear warning of what was expected of counsel. Thereafter, Rudolph was warned by the trial judge that he was violating court instructions and would answer for those violations at the conclusion of the case. A trial court's decision to sanction an attorney for trial misconduct is reviewed under an abuse of discretion standard. See Michaels v. State, 773 So.2d 1230 (Fla. 3d DCA 2000); Alvis v. State, 764 So.2d 859, 860 (Fla. 3d DCA 2000); Carnival Corp. v. Beverly, 744 So.2d 489(Fla. 1st DCA 1999); see also Fla.R.Crim.P. 3.830.

Having thoroughly reviewed the transcript, we conclude that the trial judge did not abuse his discretion. While it is perfectly permissible for trial attorneys to point out perceived discrepancies in the evidence introduced at trial and opposing counsel's characterization of the same, it is never acceptable for one attorney to effectively impugn the integrity or credibility of opposing counsel before the jury in the process. See 0wens-Corning Fiberglas Corp. v. Crane, 683 So.2d 552, 554 (Fla. 3d DCA 1996). Moreover, we find incredible the lawyer's claim that he did not know the exact words he used were improper or would amount to a violation of the court's instructions. As the Rules of Professional Conduct of the Florida Bar, Rule 4-8.4(d) provides: "[a] lawyer shall not. . .engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against . . .other lawyers on any basis. . . ."

Accordingly, the order under review is affirmed.