
    Thomas Allen MARTIN and Joseph M. Doyle, Appellants, v. STATE of Florida, Appellee.
    No. PP-158.
    District Court of Appeal of Florida, First District.
    May 11, 1981.
    James M. Barton, II, of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, P. A., Pensacola, for appellant Thomas Martin.
    Thomas M. Ervin, Jr., of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant Joseph M. Doyle.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellants, Martin and Doyle, were convicted of indirect criminal contempt resulting from an interview with Carol Moore relative to her certification of an affidavit that Appellant Martin felt was a crucial piece of evidence in criminal charges pending against his wife.

The first trial of Mrs. Martin resulted in a mistrial when the jury was unable to reach a verdict. The State indicated its intent to retry the case and the Appellant, Thomas Allen Martin, consulted his wife’s attorney relative to the propriety of interviewing Mrs. Moore who was then living in Miami, Florida. After receiving legal advice Martin, an investigator with the Es-cambia County Sheriff’s Department, telephoned Appellant Doyle, a friend and fellow officer with the Tallahassee Police Department, advising him of the trip and of his intent to spend a night in Tallahassee. Doyle agreed to help with the driving to Miami and suggested that in order to save on gasoline they take his smaller car. They arrived in Miami late Saturday night on July 22,1978, and the next morning went to the home of Mrs. Moore.

Martin introduced himself as an investigator for the Escambia County Sheriff’s Department. In the course of the introduction he produced identification including his badge and informed Mrs. Moore that he was the husband of Sue Martin. He introduced his friend Joe Doyle as an investigator from Tallahassee and informed Mrs. Moore of the criminal action pending against his wife and of certain suspicions he had relative to the notarized statement. After producing a copy of the document he told her that everyone in Pensacola knew that the instrument was back-dated and that he was looking for a way to have the charges dropped against his wife. Mrs. Moore admitted that the affiant had not been sworn at the time he executed the document and Martin made several inquiries relative to the actual date of the signing; stating that if, in fact, an investigation by the State disclosed that his suspicions were correct, Mrs. Moore could be charged with a third-degree felony. In the course of conversation Mrs. Moore was told that if she would give a statement that the document had not been notarized correctly, Martin and his wife would give her a written statement saying that they would not attempt to press charges. When Mrs. Moore persisted in her assertion that the date appearing on the document was the true date of notarization, Appellant Doyle, who had remained silent throughout most of the conversation, told her that by not swearing the affiant, she was guilty of a third-degree felony and that there was a good chance that the State would file charges against her. In the course of Doyle’s conversation Mrs. Moore was asked if she would give a simple statement to the effect that the questioned document was not given under oath. Upon her refusal to give even such a limited statement, Doyle thanked her for her time, shook hands with Mr. Moore and both appellants left.

While there was pressure on Mrs. Moore to change her story in accordance with what Martin felt to be the true facts, the purpose of the visit was never concealed, and the interview was conducted in a low-key, professional manner. Mrs. Moore testified that Appellant Martin appeared flustered, disappointed and on the verge of losing his temper but he restrained himself and thereafter remained silent while Doyle continued with the conversation.

Martin, after returning from the trip to Miami, filed a complaint with the Office of the Governor seeking an investigation of the State Attorney’s Office. Mr. Moore, in the meantime, got in contact with Mr. Nelson, the affiant, and Mr. Harry L. Harper an Assistant State Attorney for Escambia County, encouraging them to do something about the interview with his wife. In May of 1979, approximately nine months after the July 23, 1978 interview, Mr. Harper filed an amended answer to discovery listing, for the first time, Carol Moore and Walter Moore as witnesses in the State’s case against Susan Martin. On June 15, 1979, a petition for order to show cause was filed against the appellants. The court denied a motion to dismiss and the appellants filed a motion to appoint an Acting State Attorney, alleging strong personal differences between Appellant Martin and State Attorney Curtis Golden, who, on the previous date, had filed a personal libel suit against Martin. The motion was denied as was a request for trial by jury. The latter denial was based upon the State’s assurance that in the event of a finding of guilty the State would request a penalty of less than six months and the court’s agreement that any punishment imposed would not exceed such threshold. Both appellants at trial admitted their contact with Mrs. Moore, but denied any attempt to coerce her into giving a false statement and any intent to obstruct justice. Appellants were found guilty of indirect criminal contempt and the court immediately proceeded to pronounce sentence over the defendants’ objections. The defendants’ request for an opportunity to present evidence of mitigating circumstances prior to sentencing was denied. The court, in denying said motion, advised defense counsel that if the defendants chose to subsequently present mitigating circumstances, a hearing would be set for that purpose and the court would then review its judgment. Appellant Doyle was sentenced to two months and Appellant Martin to three months, in the county jail. The clerk entered the adjudication of commitment, which contained no recital of facts constituting the contempt of which the appellants were adjudicated guilty. No written judgment of guilty was ever entered by the trial judge. Both appellants filed timely appeals and the matter is now properly before this court for consideration.

It is established law in Florida that great due process procedural safeguards should be accorded one accused of indirect criminal contempt. The procedure to be followed in such proceedings is set forth in Florida Rules of Criminal Procedure 3.840 which requires that at the conclusion of the hearing to determine the guilt or innocence of the defendant, the judge shall sign and enter of record a judgment of guilty or not guilty. There must be included in a judgment of guilt a recital of the facts constituting the contempt of which the defendant has been found and adjudicated guilty. Failure to comply with this rule is reversible error requiring remand to the lower court for entry of a proper judgment and sentence. Bryant v. State, 363 So.2d 1141 (Fla. 1st DCA 1978); McKnight v. State, 325 So.2d 79 (Fla. 4th DCA 1976); Davis v. State, 261 So.2d 188 (Fla. 1st DCA 1972), cert. denied, 265 So.2d 51 (Fla.1972). Such would normally be the disposition of this court. However, we find that aside from procedural defects, the judgment and sentences in this instance must be reversed on the merits for reasons hereinafter set forth.

Constructive contempt is an act done not in the presence of the court or of a judge acting judicially, but at a distance under circumstances that reasonably tend to degrade the court or the judge as a judicial officer, or to obstruct, interrupt, prevent, or embarrass the administration of justice by the court. The proceeding is maintained solely and simply to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court. Bryant v. State, supra; Ex parte Earman, 95 So. 755 (Fla.1923). Courts recognize that the power to punish for contempt is extraordinary and far-reaching and, unless used cautiously and prudently, can be subject to abuse. Ray v. State, 352 So.2d 110 (Fla. 1st DCA 1977); Krueger v. State, 351 So.2d 47 (Fla. 3rd DCA 1977); Olds v. State, 302 So.2d 787 (Fla. 4th DCA 1974). The power of the court to punish for contempt is allowed, not to satisfy an offended individual, but to vindicate the authority and dignity of the judicial office; and the penalty should have reference to the nature and enormity of the act complained of and to the wrong done to the court. Ex parte Earman, supra. Mrs. Moore was not a witness to any court action ,at the time she was contacted. She had not been called or listed as a witness in the first trial of Mrs. Martin and, in light of her limited role in the scenario, it was dubious whether she would be called as a witness for the State in any future trials. There was no outstanding court order prohibiting or restricting contact with her and it was only after Appellant Martin received assurance from his wife’s attorney that there was no impropriety in an interview that he contacted her. We conclude that under the circumstances the evidence is insufficient to sustain a finding that the appellants’ trip to Miami was “to pollute the free flow and divest the free flow of the channels of justice.” In criminal contempt proceedings the contemnor is presumed to be innocent until proved guilty beyond a reasonable doubt. Demetree v. State, 89 So.2d 498 (Fla.1956). Within the guidelines applicable to indirect criminal contempt proceedings we do not feel that the appellants’ guilt has been demonstrated to the exclusion of a reasonable doubt.

The order of contempt and the sentences imposed for said contempt are vacated.

ROBERT P. SMITH and SHAW, JJ., concur.

BOOTH, J., dissenting with opinion.

BOOTH, Judge,

dissenting:

The facts, as outlined by the majority, support the trial court’s ruling of indirect contempt based on appellants’ unlawful attempts to persuade one Carol Moore to change her testimony. An important additional fact, not referred to in the majority opinion, is that Mrs. Moore was the notary on the affidavit which commenced the criminal prosecution for grand theft against appellant Martin’s wife. A motion to dismiss the charges against Martin’s wife, based on irregularities in the execution of the affidavit, had been filed and hearing set for the day following appellants’ interview with Mrs. Moore. Appellant Martin testified the evidence he sought to obtain from Mrs. Moore was “vital.” The record shows he used his friend Doyle and their official positions as law enforcement officers in an effort to make Mrs. Moore change her testimony.

At common law, and under the law of Florida, the court has inherent power to punish conduct which obstructs justice or interferes with the orderly processes of the court. The contempt power is not restricted to conduct which constitutes the felony offense of tampering with a witness, nor is it limited to punishment for intimidation of individuals who have been officially called or designated as “witnesses.” Were that the rule, the court would be powerless to punish the intimidation of potential witnesses. Fortunately, the power of the court is not so restricted.

The word “witness” derives from the Anglo-Saxon word “witan,” meaning “to know, to be wise,” and includes one by whom facts are sought to be proved, that is one who has knowledge of a fact or occurrence sufficient to testify in respect to it. It is the act of attempting to intimidate, persuade, or coerce a witness which is inimical to our judicial system and punishable by the court as indirect criminal contempt. For this purpose, it matters not that the individual sought to be intimidated is mistakenly believed to be a witness. Nor is it required that the testimony sought to be obtained was, or was believed by the con-temnor to be, true. It is not necessary that the witness be actually intimidated, so long as the acts or threats exercised against the witness were reasonably calculated to achieve that result. Thus, it is no defense that appellants were mistaken in believing that the evidence sought to be extracted from the witness was “vital” and/or true. Advice of counsel, “assisting in investigation,” and “good faith” are not defenses, State ex rel. Huie v. Lewis, 80 So.2d 685, 688 (Fla.1955), though they may be considered by the court in mitigation. Of course, it is no defense that appellants were unsuccessful in making Mrs. Moore change her testimony.

The Miami interview took place after the first trial of appellant’s wife, which resulted in a mistrial, and before the second trial, which resulted in Mrs. Martin’s conviction of grand theft. Martin, a criminal investigator for the Escambia County Sheriff’s Department, and Doyle, his friend and a Deputy Sheriff from Leon County, drove to Miami, arriving Sunday morning at the home of Mr. and Mrs. Moore. Martin displayed his badge and credentials at the door and introduced Doyle as an investigator. Both Mr. and Mrs. Moore testified that they believed appellants were there on official business. Mrs. Moore had been the personal secretary of one Gilbert Nelson and, as such, had notarized Nelson’s affidavit of complaint charging Mrs. Martin with larceny by embezzlement of more than $30,000, property of an apartment complex managed by Mrs. Martin, of which Nelson was the court-appointed receiver. At the time of the Miami interview, Mrs. Moore had not been subpoenaed as a witness, though she was later subpoenaed for the second trial.

The Honorable M. C. Blanchard, Circuit Judge, who presided over Mrs. Martin’s criminal trial, issued rule to show cause why appellants should not be held in contempt. Another Circuit Judge, the Honorable Woodrow Melvin, who had no involvement in the criminal trials of Mrs. Martin, heard the evidence and observed the manner and demeanor of the witnesses who testified before him. Under Florida Statutes, Section 38.22, “all questions of law and fact” are to be determined by the trial court, a determination not to be set aside on appeal where reasonably supported by the record. Ward v. State, 354 So.2d 438 (Fla. 3d DCA 1978). The testimony of Mrs. Moore, essentially uncontradicted, was, in pertinent part, as follows:

A ... [Martin] said the following day, which was a Monday, they were going to court and if he could have a statement from me saying that it [affidavit] had been post dated that the judge had already said that he would throw the whole thing out of court.
A I told him that it had been notarized on that date and that I couldn’t tell him anything else, and then he continued with, “Well, everyone in Pensacola knows that it was notarized on the wrong date.” ... And, again I told him that I had notarized it on the right date, and that that was all I could tell him. And then he continued again about — Mr. Doyle told me that it was a third degree felony to notarize something incorrectly.

Mrs. Moore testified that appellants “continuously” said they wanted “a statement from you that you did not notarize this correctly.” Her further testimony was:

A ... I said, ... “If I need to give any information I’d rather give it in a deposition or as a witness than sit down and write it now and give it to you,” mostly because I was so scared. I don’t think could have written anything.
A ... He [Martin] said, “I will give you a statement saying that neither my wife nor I will press charges against you, and I’ll have her notarize it and give you that.”
Q Was this before or after Mr. Doyle had told you that falsely notarizing a document was a third degree felony?
A I really don’t remember which came first.
A When they finally realized that I wasn’t going to give them anything, and Mr. Doyle proceeded to tell me, he said, “Well, let me prepare you for what will happen. When it goes to court you will probably be called as a witness and it will all be brought out then because we can take that document plus something else that you’ve notarized and send it to our crime lab and they can verify to the hour of the date as to when it was notarized.” And, he said, “So, I am preparing you to expect this — that you will be called.”
Q Were you upset ?
A Terribly so. I was shaking horribly.
Q How did you feel about their visit ?
A I felt threatened. I felt that they came there to scare me into doing something.
A I was very upset. I was shaking and nervous. I had let them into my home thinking that this was a legal matter — that they were there on official business. That was how the whole conversation started and was aimed at, and when they continuously asked me for something I knew I couldn’t give them truthfully ... (emphasis supplied)

Mr. Moore testified, in part, as follows:

A ... But he [Doyle] said that if she would make a statement saying that she had, in fact, not notarized it correctly, that he would in turn give her a statement saying that neither he or his wife Sue would ever attempt to press charges or bring any charges against her, and he even' pointed out that because his wife was a notary that he would have her notarize that statement.
Well, at this point my wife has become very upset, and I don’t think she could have written any kind of a statement at this time whether she wanted to or not. She was very shaken.
Q Did either defendant lead you to believe that it was an official visit?
A Yes.

The foregoing testimony supports the ruling of the trial court, who set out the basis for his findings in the record at the conclusion of the hearing. Appellants had already submitted the testimony of witnesses as to their respective good records as law enforcement officers; however, the court ruled, without objection by defense counsel, that further testimony in mitigation of sentences imposed would be heard and considered by the court if offered. The record reveals that appellants were accorded their rights in this regard and were fully advised of the basis of the trial court’s ruling.

The judgment below should not be reversed, and I, therefore, respectfully dissent. 
      
      .Petition for Order to Show Cause, in part: [Appellants] did unlawfully attempt to persuade and induce the said Carol Moore, a subscribing witness as a Notary Public in said Case Number 77-1828-B, Circuit Court in and for Escambia County, Florida, to make an admission to them that the Affidavit of Complaint executed by Gilbert Nelson and filed with the State Attorney’s Office in Case Number 77-1828-B in the Circuit Court in and for Escambia County, Florida, was not signed by Gilbert Nelson on the date shown on said Affidavit of Complaint and that said Affidavit was post-dated (which admission would be contrary to her recollection of the facts relating to said criminal proceedings and concerning the date of the signing and execution of said Affidavit and which admission would have been false) with the intent and purpose by the said [appellants] ... of using said admission or statement to have the said criminal case pending against Susan H. Martin dismissed from Court, thereby effecting the final outcome of said case.
     
      
      . § 918.14, Fla.Stat.
     
      
      . Croft v. Culbreath, 150 Fla. 60, 6 So.2d 638 (1942); State ex rel. Huie v. Lewis, 80 So.2d 685 (Fla.1955); see Shaw v. Shaw, 164 Eng. Rep. 1097 (E & A 1861), held contempt of court for threatening to file charges against a person likely to be a witness.
     
      
      . Mellinkoff, Language of the Law, 47 (Little, Brown & Co. 1963); 97 C.J.S. Witness at 331.
     
      
      . In re Hand, 89 N.J.Eq. 469, 105 A. 594 (1918).
     
      
      . 17 C.J.S. Contempt § 31.
     
      
      . Cause can be remanded for entry of order under Rule 3.840, Fla.R.Crim.P. McKnight v. State, 325 So.2d 79 (Fla. 4th DCA 1976).
     