
    Shalonda WASHINGTON, Petitioner, v. Hon. Warren BURK, Circuit Court Judge, etc., Respondent.
    No. 96-1404.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 1997.
    
      James Russo, Public Defender, and Blaise Trettis, Executive Assistant Public Defender, Roekledge, for Petitioner.
    Robert A. Butterworth, Attorney General, Tallahassee, and Anthony J. Hall, Assistant Attorney General, Daytona Beach, for Respondent.
   COBB, Judge.

The petitioner, Shalonda Washington, seeks a writ of prohibition declaring that her impending trial for indirect criminal contempt of court for violating a domestic violence injunction is barred by the operation of the speedy trial rule. The trial court denied her motion for discharge.

The factual background of this ease shows that Washington was arrested on November 28, Í995, at a Wal-Mart Super Center for violating an injunction against repeat violence which prohibited her from visiting the place of employment of one Amy Litchfield. The arrest was effectuated pursuant to section 901.15, Florida Statutes (1995), which allows a law enforcement officer to make a warrantless arrest if probable cause exists to believe a person has violated an injunction for protection. Washington was handcuffed, transported to a detention center, booked, and then incarcerated.

The state obtained continuances at two docket soundings, and never filed an information charging Washington with the crime of violation of an injunction for protection under section 741.31(4)(b), Florida Statutes (1995), which makes such violation a first degree misdemeanor. On February 27, 1996, Washington’s counsel filed a motion for discharge in the county court, utilizing the case number assigned at the time of arrest, and the state promptly filed a nol pros in that case the next day. That concluded the county court prosecution.

Subsequently, on March 11,1996, the state filed in the family division of the circuit court a motion for order to show cause to be directed to Washington based on the incident at Wal-Mart on November 28, 1995. The circuit court issued the order, thereby initiating indirect criminal contempt proceedings against her. The court then denied Washington’s motion for discharge, which asserted that the speedy trial time period for indirect criminal contempt had commenced to run at the time of her initial arrest on November 28, 1995, and expired 90 days thereafter pursuant to State v. Agee, 622 So.2d 473 (Fla.1993)(state not entitled to 15-day recapture period where it has nol prossed its original information and then refiled after the expiration of the speedy trial period).

The trial court’s denial of Washington’s motion to discharge was predicated solely on the authority of Mauney v. State, 507 So.2d 746 (Fla. 5th DCA 1987), wherein we held that Florida Rule of Criminal Procedure 3.191 does not apply to indirect criminal contempt prosecutions under Florida Rule of Criminal Procedure 3.840. Petitioner contends that we should recede from Mauney and argues in her brief:

The court’s decision in Mauney is based, in part, on the premise that judges, not prosecutors, typically file the order to show cause charging document. The Mauney decision also is based, in part, on the premise that show cause orders in indirect criminal contempt matters are not generally coupled with an arrest. Mauney at 748. While these premises may have had validity in 1987, these premises are outdated and are no longer valid in 1996. As in all prosecutions for indirect criminal contempt for violation of a protective injunction in Brevard County, the order to show cause in the petitioner’s case was initiated, written, and submitted by the State of Florida — not by the court.
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A number of factors have combined to make the State’s indirect criminal contempt prosecutions routine and numerous in the family division of the circuit court. First and foremost is the “mandatory arrest” policies that all law enforcement agencies now adhere to when responding to a domestic disturbance call. The catalyst for this change in law enforcement policy was the enactment of legislation which provides an officer is immune from civfi liability if the officer makes an arrest when enforcing a court order. See section 741.29(5), Fla. Stat. (1995); Ch. 95-195, Laws of Florida. See, also, section 901.15(7)(b), Fla. Stat. (1995).
Second, pursuant to section 741.2091(1) which provides that each state attorney shall assign prosecutors to specialize in the prosecution of domestic violence eases, “domestic violence” prosecutors now prosecute indirect criminal contempt in the circuit court. The state favors indirect criminal contempt prosecution because a defendant does not have the right to a jury trial if the judge agrees to impose no more than six months incarceration upon a conviction. Aaron v. State, 284 So.2d 673, 676 (Fla.1973). If the state were to prosecute in the county court, the petitioner would have to be afforded a trial by jury.

We note that Florida Rule of Criminal Procedure 3.010 provides that the rules “shall govern the procedure in all criminal proceedings involving direct and indirect criminal contempt.” It is clear from established ease law that indirect criminal contempt is a criminal proceeding. See Gidden v. State, 613 So.2d 457,460 (Fla.1993); Moorman v. Bentley, 490 So.2d 186, 187 (Fla. 2d DCA 1986).

It should make no difference whether such a proceeding is initiated by indictment, information, citation, notice to appear, or order to show cause. As pointed out by Justice Powell in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972): “[E]ven if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.”

The state has afforded us no substantive reasons for adherence to Mamey, and we elect to recede from it. We now hold that all indirect contempts are subject to the Speedy Trial Rule, whether initiated by arrest or service of an order to show cause.

The question we then must confront is: did the speedy trial period for the circuit court action commence with Washington’s arrest on November 28,1995, or with service of the show cause order in March, 1996? Section 775.021, Florida Statutes (1995) indicates that it is not the intent of the legislature to provide for separate convictions and sentences for two offenses which require identical elements of proof. In the instant case the charges against Shalonda Washington, whether pursued as a statutory misdemeanor in county court or as indirect contempt in circuit court, would require identical elements of proof for conviction. Cf. State v. Johnson, 668 So.2d 194 (Fla.1996). It necessarily follows that the initial arrest of Shalon-da Washington incepted the running of the speedy trial time in the instant case irrespective of the prosecutorial device utilized by the state.

Accordingly, we grant the instant petition for writ of prohibition.

WRIT GRANTED.

HARRIS, GRIFFIN, THOMPSON and ANTOON, JJ., concur.

W. SHARP, J., dissents, with opinion, with which PETERSON, C.J., and DAUKSCH and GOSHORN, JJ., concur.

W. SHARP, Judge,

dissenting.

I disagree that this court should recede from Mauney v. State, 507 So.2d 746 (Fla. 5th DCA 1987). The majority writes that the state has not afforded any substantive reason to adhere to Mamey. This misstates the burden for overturning precedent. The rule of stare decisis requires adherence to established precedent unless the party seeking to overturn it (i.e., here the defendant below, Washington) presents an argument for change that is overwhelming, not just persuasive. Old Plantation Corp. v. Maule Industries, Inc., 68 So.2d 180 (Fla.1953). See also Perez v. State, 620 So.2d 1256, 1258 (Fla.1993), (Overton, J., concurring).

In the first place, Mamey does not conflict with the majority opinion. It involved simply an indirect criminal contempt proceeding brought by the trial court for a possible violation of a court order. No prior arrest for a crime was involved. Indirect criminal contempt proceedings can be initiated by another party to the proceeding, by filing a motion, followed by an order to show cause. In such cases, we said the speedy trial rule has no impact, and we pointed out that there were no relevant time periods for commencing, .the running of the speedy trial rule.

In this case, a criminal proceeding was commenced by an arrest for violating an injunction against repeat violence, pursuant to a new criminal statute, section 741.31(4)(b). .In such a ease, the speedy trial rule is triggered by the arrest. Once the prosecution by the state became barred by the speedy trial rule, the question in this case is whether the speedy trial rule should bar the circuit court from enforcing its own injunction. I do not think it should.

Rule 3.010 has long stated that the criminal rules shall govern all criminal proceedings, including direct and indirect criminal contempt matters. In Mann v. State, 476 So.2d 1369 (Fla. 2d DCA 1985), the court concluded that this rule was merely a policy declaration regarding use of the rules, in the conduct of criminal proceedings. It was not a mandate that the speedy trial rule is applicable to every criminal proceeding. Our sister court in Drost v. Drost, 519 So.2d 698 (Fla. 4th DCA 1988) held that the speedy trial rule does not apply to direct or indirect contempt proceedings. The majority opinion in this case creates a conflict with that decision, which can only be resolved by the Florida Supreme Court.

Further, I suggest there are strong policy reasons not to hold that the speedy trial rule times commence to run in the circuit court, when the state arrests a defendant for violating the same injunctive order, even assuming the factual basis for both are the same, which we cannot properly ascertain in this case. The civil courts which issue injunctions and protective orders in family law cases have little or no practical way of knowing the status of a criminal prosecution involving one of their orders, or even whether an arrest by the state has been made. Thus, the circuit court has no way of knowing when the ninety day time period (for misdemeanors) has run or commenced to run in a criminal prosecution. Nor is it clear which court — the circuit or the criminal — should hold the hearing required by Rule 3.191(p) to determine whether (j) should or should not apply, and if not, to order the defendant brought to trial in ten days. In this case, it is not clear any such window period was allotted before barring prosecution by the state in the criminal case, much less this ease.

Further, the safeguards provided to persons against whom indirect criminal contempt proceedings are brought, do not dovetail with the speedy trial rule. The judge on his or her own motion or on affidavit of a person having knowledge of the facts, issues and signs a show cause order directed to the defendant, stating the essential facts and requiring the defendant to appear to show cause why he or she should not be held in contempt of court. Fla. R.Crim. P. 3.840(a). The order must give the defendant a reasonable time to prepare a defense after service of the order. A reasonable time may exceed the ninety days stated in the speedy trial rule, if as the majority suggests, speedy trial time starts to run when the show cause order is served.

When the speedy trial rule should commence to run in an indirect criminal contempt proceeding is likewise unclear. There is no strong argument to conclude it starts to run from the service of the show cause order. That is not truly analogous to an arrest in a criminal ease. A person’s freedom is not so impacted as in a purely criminal case. Further, the indirect criminal contempt rule contains a separate provision for arrest — (c), applicable only in exceptional circumstances. The normal commencement of such proceedings does not involve an arrest. Thus the invocation of procedural protections embodied in the speedy trial rule are not necessary or required, unless a person is in fact arrested.

Finally, in my view, the application of the speedy trial rule to civil courts seeking to enforce their injunctions or orders, whether triggered by an arrest in a criminal prosecution or even a show cause order, will prove unworkable, and as a practical matter will strip the civil courts once more of their inherent powers to enforce their orders in family law cases involving domestic violence. The Legislature sought to do this once, but it was held to be unconstitutional. Subsequently, the Legislature restored contempt powers to the courts in that context.

I conclude from these events that violation of injunctions in cases involving domestic violence are intended to be enforced and punished by alternative methods. In one, the state may prosecute violations as a crime and the speedy trial rule should apply to that prosecution commencing with an arrest. But if sought to be enforced by a show cause order issued by the court which promulgated the injunction, I see no reason why the speedy trial rule should have any impact. Double jeopardy may possibly be applicable but that defense is not at issue in this case nor is this case ripe for that kind of analysis.

To hold otherwise strips away the circuit court’s powers to enforce and punish for violation of its injunctions and orders. The civil courts which issue injunctions and protective orders have no way of knowing whether an arrest had been made involving one of their orders, no way of requiring compliance with the time frames of the speedy trial rule, and no way of applying the “window” period embodied in the speedy trial rule to save cases from dismissal in the appropriate circumstances. Further, the courts may also have difficulty in applying the speedy trial rule to their own proceedings, since it is not clear when the speedy trial rule starts to run, nor is it clear how the “window” period would apply to those proceedings. In sum, subjecting the civil courts to the speedy trial rule triggered either by the state’s prosecution or by their own show cause orders, will have the practical effect of curtailing their ability to exercise their inherent criminal contempt powers, for no compelling reason. 
      
      . See § 784.046, Fla. Stat. (1995).
     
      
      . See Fla. R.Crim. P. 3.191.
     
      
      . We do not concern ourselves in this opinion with the applicability of Rule 3.191 to direct criminal contempt proceedings. We note, however, there are persuasive reasons why the procedural requirements of this rule cannot apply to such summary proceedings. See, e.g., Mann v. State, 476 So.2d 1369 (Fla. 2d DCA 1985).
     
      
      . Fla. R.Crim. P. 3.191.
     
      
      . § 741.30(8)(a), Fla. Stat. (Supp.1994).
     
      
      . See Steiner v. Bentley, 679 So.2d 770 (Fla.1996); Walker v. Bentley, 678 So.2d 1265 (Fla.1996).
     