Opinion
Habeas Corpus No. 71-862.
August 10, 1971.
Max A. Goldfarb, Philip Carlton, Jr., and Rex Ryland, Jr., Miami, for petitioner.
Richard E. Gerstein, State's Atty., and Richard Registro, Miami, for respondent.
Before PEARSON, CHARLES CARROLL and BARKDULL, JJ.
We have been presented with a petition for the writ of habeas corpus which we set for hearing upon a rule to show cause why the writ should not be issued. The response made at hearing admitted the factual allegations of the petition, and clearly demonstrated petitioner's right to the writ and to discharge. We thereupon entered an order discharging the petitioner with the provision that an opinion of the court would follow.
Petitioner was subpoenaed for jury duty and appeared before the circuit court. His request for a postponement of the time of service was granted but petitioner failed to appear upon notification of the new date of service. A bench warrant was issued and petitioner was brought before the court. Without further proceedings, petitioner was found in contempt of the circuit court and sentenced to ten days in jail, "for failure to appear for service as a juror as required by law."
See In re S.L.T., Fla.App. 1965, 180 So.2d 374, and authorities therein for the requirement that in any indirect contempt proceeding the accused is always entitled to a hearing and an opportunity to resist the charge through defense or explanation. The requirement for a hearing and an opportunity to resist the charge includes the right to reasonable notice and a reasonable opportunity to present a defense. Also see Martin v. State, Fla.App. 1967, 194 So.2d 8.
Fla. Stat. § 40.27, F.S.A., provides a fine as the penalty for the failure of a person duly summoned to attend as a juror in any court. This is the exact breach of the law of which the petitioner was found guilty. The order of the circuit judge does not find any other basis for the charged "contempt." Under these circumstances, no further proceedings before this court are necessary and this court has no alternative to the discharge of the petitioner.
The order and judgment committing the petitioner is hereby vacated and quashed. The order of this court directing the release of the petitioner, James E. Brocato, is made final and conclusive.
It is so ordered.