Order Dismissing Contempt Allegation And Vacating Direct Criminal Contempt Conviction of Neil J. Gillespie

Order Dismissing Contempt Allegation And Vacating Direct Criminal Contempt Conviction of Neil J. Gillespie 

On September 18, 2024 Marion County Circuit Judge Robert W. Hodges (left) entered Order Dismissing Contempt Allegation And Vacating Direct Criminal Contempt Conviction of Neil J. Gillespie in Marion County, Florida cases 2019CF4193, 2021CF0286 and 2022CF1143.

On August 2, 2024, the Fifth District Court of Appeal Reversed and Remanded the order of Marion County Circuit Judge Peter M. Brigham holding me in direct criminal contempt. The Fifth DCA ruling held in part: "We reverse and remand for the trial court to hold a hearing which adheres to the express requirements of rule 3.830." see my earlier post Marion County Circuit Judge Peter Brigham Reversed and Remanded 

The events leading to the Order of Judge Hodges dismissing the contempt allegation and vacating my conviction for direct criminal contempt are as follows:

On September 10, 2024, Marion County Administrative Judge Lisa Herndon entered Order Of Reassignment stating:

PURSUANT TO the August 2, 2024, Opinion from the Fifth District Court of Appeal, filed on August 29, 2024, this case is removed from the docket of the Honorable Peter Brigham and reassigned to the Honorable Robert Hodges for a hearing on the matter.
DONE AND ORDERED in Chambers, at Ocala, Marion County, Florida, on September 10, 2024.

On September 11, 2024 Judge Hodges entered Order Scheduling Hearing Tuesday October 8, 2024 at 3:30 PM. The attached order does not mention a 3.830 hearing.

THIS CAUSE shall come before the undersigned Circuit Judge on
Tuesday, October 8, 2024 at 3:30 p.m., at the Marion County Judicial Center, Courtroom 3A, 110 Northwest First Avenue, Ocala, Florida.
DONE AND ORDERED in Chambers at Ocala, Marion County, Florida this
11 day of September 2024.

Oddly, on September 11, 2024, Judge Hodges entered a separate Order Setting Trial in each of three Marion County, Florida cases 2019CF4193, 2021CF0286 and 2022CF1143. The orders set a pretrial conference for pro se defendants on September 30, 2024 @ 1:00 PM, and a jury trial on October 14, 2024 @ 9:00 AM. The orders were mailed and not served on the Florida Portal.

The three orders were questionable because I pleaded no contest and adjudication was withheld in those cases. Although I was NOT GUILTY, I pleaded no contest to get out of jail in order to pay my rent, vehicle payment, and other bills. The state had revoked my bond on the grounds that the alleged direct criminal contempt was alleged "new crime" committed while released on bond. Otherwise I would have remained incarcerated for at several months, or longer, until trial. Later after I was released, I moved to withdrawal my plea of no contest for manifest injustice and other grounds. Judge Brigham denied my motion. The 5th DCA affirmed Judge Brigham (5D23-2005) and a Mandate was entered by the 5th DCA on March 18, 2024. So those cases appeared to settled. Because those cases were settled, it appeared the trial court lacked jurisdiction to conduct new trial, under the Double Jeopardy Clause of the Fifth Amendment to the US Constitution.

So why did the trial court enter orders setting jury trial? And why did the trial court fail to serve me the orders electronically by email on the Florida Portal? I only learned about the orders by reading the public online case docket, although the orders themselves were "locked" and not viewable. To get answers, on September 12, 2024 I made a pubic records request to Gregory C. Harrell, Marion County Clerk of Court and Comptroller.

In response, I got an email from Sarah Driggers, Criminal Courts Manager, Administration. Ms. Driggers wrote in part:

I have been asked to assist with your request due to Clerk Harrell and Mr. Davis being out of the office. Please know the documents requested below are now available for viewing through our public site.

On September 14, 2024, I responded to Ms. Driggers by email:

Thank you Ms. Driggers. May I ask why Judge Hodges entered Order Setting Trial in cases 19cf4193, 21cf286 and 22cf1143? I pled no contest and adjudication was withheld in those cases. I moved to withdrawal my plea. Judge Brigham denied my motion. The 5th DCA affirmed Judge Brigham (5D23-2005) and a Mandate was entered by the 5th DCA on March 18, 2024. So those cases appear settled.

Why was the Order Setting Trial not served on the Florida Portal? As of the time of this email I have not received the Order in the mail.
Neil J. Gillespie

Generally speaking, non-receipt of an order is no excuse for failing to appear (FTA). The court will usually issue an arrest warrant, also called a "pickup order" where the sheriff or police will place the FTA person under arrest, transport them to jail, where the FTA person becomes incarcerated, held on no bond, until the court can schedule a hearing.

On September 16, 2024, I got a response, not from Ms. Driggers, but from Rob Davis, General Counsel to Clerk Harrell. Mr. Davis wrote in part:

Good afternoon Mr. Gillespie,
Thank you for your email. I wanted to acknowledge receipt and let
you know that I will respond in greater detail after further review.
Take care,
Rob Davis

Without the details, on September 18, 2024 @7:56 AM, I emailed the Clerk of the Appellate Court, Sandra Williams, Clerk of the Florida Fifth District Court of Appeal.

Sandra Williams
Clerk of the Court
Fifth District Court of Appeal
300 S Beach St
Daytona Beach, FL 32114-5002
Office: 386-947-1530
Email: williamsa@flcourts.org

RE: Opinion-Disposition 5D2023-0888

Dear Clerk Williams:

Good morning. On August 2, 2024, the Fifth District Court of Appeal Reversed and Remanded the order of Judge Brigham holding me in direct criminal contempt. The ruling held in part: "We reverse and remand for the trial court to hold a hearing which adheres to the express requirements of rule 3.830."

On September 10, 2024 Judge Robert Hodges was reassigned to my criminal cases.

On September 11, 2024 Judge Hodges entered Order Scheduling Hearing Tuesday October 8, 2024 at 3:30 PM. The attached order does not mention a 3.830 hearing.

On September 11, 2024 Judge Hodges entered Order Setting Trial in cases 19cf4193, 21cf286 and 22cf1143. The order sets a pretrial conference for pro se defendants on September 30, 2024 @ 1:00 PM, and a jury trial on October 14, 2024 @ 9:00 AM. The orders were mailed and not served on the Florida Portal.

I pled no contest and adjudication was withheld in those cases. I moved to withdrawal my plea for manifest injustice and other grounds. Judge Brigham denied my motion. The 5th DCA affirmed Judge Brigham (5D23-2005) and a Mandate was entered by the 5th DCA on March 18, 2024. So those cases appear settled. Because those cases are settled, it appears the trial court lacks jurisdiction to conduct new trials. So why has the trial court entered orders setting jury trial?

Last week I asked the Marion County Clerk's office this question, but do not yet have an answer. Furthermore, last year in each case I filed notice of prosecutorial misconduct. A reasonable person viewing this matter could reasonably conclude that I cannot get a fair hearing or trial in the Fifth Judicial Circuit with State Attorney William Gladson.

Copies of the orders are attached. Thank you.

Sincerely,
Neil J. Gillespie
(Signature block omitted)

Cc: Office of the Attorney General [Ashley Moody]
444 Seabreeze Blvd.
5th Floor
Daytona Beach, FL 32118
crimappdab@myfloridalegal.com

About a half-hour later, September 18, 2024, Judge Hodges entered Order Vacating Order Setting Trail in each case, served on the Florida Portal.

By the end of the day on September 18, 2024, Judge Hodges entered Order Dismissing Contempt Allegation And Vacating Direct Criminal Contempt Conviction of Neil J. Gillespie in Marion County, Florida cases 2019CF4193, 2021CF0286 and 2022CF1143.

A composite document with the foregoing is posted on Scribd.

Judge Hodges was appointed to serve as Circuit Judge in 2007 by Former Governor Charlie Christ. Hodges previously served as an Assistant State Attorney for the Fifth Judicial Circuit. Judge Peter Brigham previously served as an Assistant State Attorney for the Fifth Judicial Circuit. Many judges are former prosecutors.

Marion County Circuit Judge Peter Brigham Reversed and Remanded

Fifth District Court of Appeal, State of Florida 

Neil Joseph Gillespie, 

Appellant,

v. 

State of Florida, 

Appellee.

Case No. 5D2023-0888; Lt Case Nos. 2022-CF-1143, 2021-CF-0286, 2021-CF-4193
REVERSED AND REMANDED.

On appeal from the Circuit Court for Marion County. Peter M. Brigham, Judge.

Neil Joseph Gillespie, Ocala, pro se.

Ashley Moody, Attorney General, Tallahassee and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

August 2, 2024

PER CURIAM. 

Neil Joseph Gillespie ("Gillespie") Gillespie appeals his conviction of direct criminal contempt. Because the trial court failed to comply with Florida Rule of Criminal Procedure 3.830 during the contempt hearing, we reverse and remand for the trial court to hold a hearing in accordance with rule 3.830

Facts 

On January 3, 2023, Gillespie appeared pro se for a hearing in his pending criminal cases. During a discussion regarding a proposed order, Gillespie allegedly "yelled" at the court.[fn1] The court admonished Gillespie for this conduct, at which point Gillespie stated that because of a speech impairment he has a hard time projecting his voice. [fn1] While the written transcript was provided on appeal, the audio recording was not.

Twenty-two days later, on January 25, 2023, Gillespie appeared for a scheduled pretrial conference. After finishing the conference, the court brought up Gillespie "yelling" during the January 3, 2023 hearing and indicated that it was going to hold him in contempt. Although there was then some discussion between Gillespie and the court, the court neither "inquire[d] as to whether [Gillespie] ha[d] any cause to show why he . . . should not be adjudged guilty of contempt by the court and sentenced therefor" nor "provide[d] [Gillespie] the opportunity to present evidence of excusing or mitigating circumstances." See Fla. R. Crim. P. 3.830. Ultimately, the court pronounced Gillespie guilty of criminal contempt and sentenced him to thirty days in jail.

Analysis 

"The rules of criminal contempt must be strictly followed so as to protect the due process rights of the defendant." M.J. v. State, 202 So. 3d 112, 113 (Fla. 5th DCA 2016) (quoting State v. Diaz de la Portilla, 177 So. 3d 965, 973 (Fla. 2015)). Although Gillespie did not object to the trial court’s failure to scrupulously follow the requirements of rule 3.830, the trial court’s failure to do so constitutes fundamental error. As we explained in Schoenwalder v. State, 70 So. 3d 745, 746 (Fla. 5th DCA 2011):

Before being adjudicated guilty of his contemptible behavior, Petitioner was entitled to "the opportunity to present evidence of excusing or mitigating circumstances." Fla. R. Crim. P. 3.830. Petitioner did not receive this opportunity. Beyond a perfunctory request whether there was just cause not to hold Petitioner in contempt, the trial court did not provide Petitioner with the opportunity to present evidence of excusing or mitigating circumstances. A trial court’s failure to afford a defendant this opportunity constitutes fundamental error.

(footnote omitted) (citing Garrett v. State, 876 So.2d 24 (Fla. 1st DCA 2004)); see also Hutcheson v. State, 903 So. 2d 1060, 1062 (Fla. 5th DCA 2005) ("‘The provisions of rule 3.830 define the essence of due process in criminal contempt proceedings and must be scrupulously followed.’ . . . [T]he failure to follow the procedural requirements in contempt proceedings is fundamental error." (quoting Keeton v. Bryant, 877 So. 2d 922, 926 (Fla. 5th DCA 2004))).

Conclusion

We reverse and remand for the trial court to hold a hearing which adheres to the express requirements of rule 3.830. See Swain v. State, 226 So. 3d 250, 252 (Fla. 4th DCA 2017) ("The proper remedy for a trial court’s failure to strictly adhere to the requirements of rule 3.830 is a new hearing at which the rule will be followed." (citing Golant v. State, 202 So. 3d 946, 949 (Fla. 4th DCA 2016))). In an abundance of caution, and because the trial judge has already held Gillespie in contempt, a different judge shall be assigned to the case on remand. See Osteen v. State, 12 So. 3d 927, 929 (Fla. 2d DCA 2009) ("Because [the trial judge] has already ruled that Osteen’s claim is without merit and a reasonable person in Osteen’s position might well fear that [the trial judge] would not fairly and impartially determine this claim, a different judge shall be assigned to the case on remand.").

REVERSED AND REMANDED.
MAKAR and HARRIS, JJ., concur.
KILBANE, J., concurs in part and dissents in part, with opinion.