author: SHEPHERD, C.J. LAGOA, J.

text:
    Alexander J. MICHAELS, Petitioner, v. James LOFTUS, etc., Respondent.
    No. 3D13-1294.
    District Court of Appeal of Florida, Third District.
    April 2, 2014.
    Rehearing Denied May 29, 2014.
    Kenneth P. Speiller; Woodward & Reiz-enstein and Philip L. Reizenstein, Miami, for petitioner.

      Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for respondent.
    Before SHEPHERD, C.J., and WELLS and LAGOA, JJ.
   SHEPHERD, C.J.

Although counsel for neither party distinguished himself by his conduct in this otherwise quite ordinary probation violation hearing, the law by which we are bound affords us the right and obligation to focus on the two offenses for which Alexander J. Michaels was found in direct criminal contempt by the trial court and sentenced to two days in the county jail. One offense was a hand gesture directed toward opposing counsel. The other was the mumbling, in Romanian, of profanities at opposing counsel. We grant Mr. Michael’s petition for a writ of habeas corpus from the conviction for use of the hand gesture, but deny his petition for habeas relief for the mumbling of profanities during the course of the proceeding. Finally, we vacate the sentence in this case and remand for resentencing based upon the single conviction.

ORDER ON REVIEW

The contempt order in this case reads in its entirety as follows:

THIS CAUSE for DIRECT CRIMINAL CONTEMPT OF COURT was heard on May 17th, 2013. Upon due deliberations, advice of counsel, and evaluation of the evidence presented, this Court FINDS:
That Alexander Michaels was in violation of a direct court order to conduct himself in a respectful and professional manner, that he violated that order by using foul language, To Wit: “F[* *]k You” and or the equivalent term in Romanian, as well as using violent and offensive physical gestures in an effort to obstruct the proceedings and administration of Justice before this court and did in fact disrupt this Court. All conduct occurred in the presence of this court.
ORDERED AND ADJUDGED that Alexander Michaels is to stand conviction of Contempt of Court and is sentence[d] to two days in the Dade County Jail.

The subsequently entered judgment holds Mr. Michaels in direct criminal contempt for “FOUL LANGUAGE AND DISRESPECT TO THE COURT; inappropriate violent gestures, all of which obstructed the proceedings and administration of Justice[,] [¿Including [m]um[ Jbling “F[* *]k You” [a]t the podium.

BACKGROUND

On May 13, 16, and 17,'2013, Mr. Mi-chaels appeared before the Honorable Christina Miranda, representing a client in a probation violation hearing. From the beginning, Mr. Michaels presented in an agitated state. Almost immediately, Mr. Michaels engaged in an inappropriate, if not unprofessional, verbal exchange with a female prosecutor not assigned to the case that compelled the trial court to caution him to “slow down.” Tr. 40, May 13, 2013. At the same time, the trial court reminded all present in the courtroom to “respect each other, if I have to deal with childlike conduct, then I will deal with it accordingly.” Tr. 41. Shortly after these warnings, Assistant State Attorney Michael Von Zamft began the presentation of the State’s case. The hearing remained contentious. Mr. Michaels continued to be disrespectful. The admonishments continued as well.

On the third day of testimony, after an objection by Assistant State Attorney Von Zamft to testimony being elicited by Mr. Michaels on re-direct examination of his own witness on the ground the question was beyond the scope of cross examination, Mr. Michaels apparently made the hand gesture in question. The following exchange ensued between the court and counsel:

MR. VONZAMFT: Your Honor, [if] he threatens me one more time, I’m going to deal with him in a different way.
I’m going to ask the Court to hold this man in contempt and potentially [B]aker [A]ct him. I have case law to substantiate your right to substantiate the contempt. [sic]
THE COURT: I have the case law. I just want to address t[w]o things before I address the issue.
MR. MICHAELS: You are talking to me. I asked him not to interrupt. He continuéis] to interrupt. I raised my voice at him to be quiet.
THE COURT: That’s not the conduct I’m referring to. The raising of the voice I tolerated. It was the hand gesture and what was mouthed. .
MR. MICHAELS: Nothing was mouth[ed].
THE COURT: Unfortunately for you I saw it and I understood it. It’s very unprofessional. At the point we address it[,] I’ll address all of it on the record.

Tr. 51, May 17, 2013 (emphasis added).

Mr. Michaels countered:

You [the court] didn’t hear anything you could not possibly say [sic]. Whatever word I said you have no idea what I said. Now, I did this with the hand like this side down. I didn’t say anything to him.
You have no idea what I said in native language. You may assume it is bad word. You may assume it’s — I use many language [sic]. No one hears it. I do it all the time when I get upset.
[When] I know I’m going to say something not proper in court I switch to my native language. No one understands. There is no possible, any kind of contemptuous things saying the word.

Tr. 55, May 17, 2013 (emphasis added). The court then announced she was going to proceed with direct criminal contempt proceedings, making it clear on the record the proceeding would be limited to “making rude and violent gestures toward the prosecutor and mouthing the words ‘f[* *]k you’ to the prosecutor in my presence,” both of which occurrences the trial court stated she personally witnessed. Tr. 60. At Mr. Michaels’ request, the trial court recessed for lunch to afford Mr. Michaels the opportunity to retain counsel and secure witnesses. Tr. 63.

THE CONTEMPT PROCEEDING

The court convened the contempt proceeding immediately after lunch. Kenneth Speiller, Esquire, appeared on behalf of Mr. Michaels. Because Mr. Speiller had not been privy to the earlier proceedings, the trial court addressed Mr. Michaels and recapped the proceedings:

I previously indicated to you prior to his being here that on a number of occasions throughout this three day probation violation hearing, I have instructed you not only to cur[b] your conduct, but to be respectful of the Court, the witnesses, the other attorneys involved, your client, and the audience.
Almost each time I reference all of those individuals, in my instruction and direct order for professional behavior. I have made a list throughout the three days of things as they progressed.
I indicated to you I would not tolerate anymore and my last admonishment was yesterday evening when I told you that would be the last time.
About the first ten minutes of today’s hearing there was an outlandish comment and I said, Mr. Michaels, it’s too early for this.
In addition to that the last instruction ordering you to be professional, respectful of the Court, and all who are present was violated by your conduct as I described earlier and will describe again for the record.
There was an objection made which eventually was actually sustained by counsel who stood up from the table while you were at the podium, but the State was at their table.
It was not an outlandish or extra loud or disruptive objection. Before I could finish ruling or even addressing it there was a vulgar and violent action from you while at the podium in my direct line of sight and you mouth “f[!l! *]k you.”
That’s in direct violation to my order and I’ve asked you if you have any reason why I should not hold you in direct criminal contempt.

Tr. 65-66 (emphasis added). Mr. Mi-chaels, through counsel, then addressed each asserted direct contempt charge.

The Hand Gesture

On this charge, Mr. Michaels’ counsel called seven witnesses, all of whom categorically testified Mr. Michaels did not make any inappropriate hand gesture toward Mr. VonZamft. Tr. 68, 71, 75, 79, 83, 86-87, 90. Rather, each witness testified that Mr. Michaels extended his arm, palm extended upward and out or in a “stop” mode, seeking to “shush” Mr. Von Zamft for interrupting Mr. Michaels’ redirect examination. The law requires a charge of direct criminal contempt be proven beyond a reasonable doubt. McRoy v. State, 31 So.3d 273, 274 (Fla. 5th DCA 2010). We review such orders on an abuse of discretion standard. Rudolph v. State, 832 So.2d 826, 828 (Fla. 3d DCA 2002); Michaels v. State, 773 So.2d 1230, 1232 (Fla. 3d DCA 2000); Thomas v. State, 752 So.2d 679, 685 (Fla. 1st DCA 2000) (“We undertake review of the order of direct criminal contempt mindful that the controlling standard of review is the abuse of discretion standard.”) (citations omitted)). Although the trial court thought to the contrary, the evidence presented on this charge is insufficient to support such a finding. Smith v. State, 954 So.2d 1191, 1195 (Fla. 3d DCA 2007). We grant the petition and quash the contempt order insofar as it finds Mr. Michaels in direct criminal contempt for making an offensive gesture.

The Romanian Mumble

Mr. Michaels’ use of foul language, however, is another matter. On this charge, Mr. Michaels admitted that while extending his hand toward Mr. Von Zamft, he mumbled the words “futos gutos monte” at him. Tr. 97. The trial court immediately knew or gleaned from Mr. Michaels’ scornfulness that the words meant “F* *k You.” Mr. Michaels confirmed the trial judge’s interpretation of the words during colloquy at the contempt hearing held a few hours later:'

THE COURT: You stated that you mumbled Romanian, what do those words mean?
[Mr. Michaels]: I’m not going to say at this point. They are obscene words. They are obscene words in Romanian. Again, if that is somehow contemptuous, then I apologize to everybody [who] could be insulted by words they do not understand.
I’m going to try in the future to stop even doing that, but I do speak Romanian. I [have] been in trouble before. I learned it in order not to offend anybody.
It happened before. Sometimes they realize they don’t understand the words. They smile, they laugh, they say don’t do it again.

Tr. 99-100. We are well aware this has happened before and we are not laughing. Mr. Michaels also has proven “don’t do it again” means nothing to him. Neither do prior sanction opinions from this court, nor prior discipline from the Florida Bar. See Michaels v. State, 773 So.2d 1230 (Fla. 3d DCA 2000) (affirming a judgment of direct criminal contempt and a sentence of six months of probation for violating an order to refrain from making speaking objections); Quinones v. State, 766 So.2d 1165, 1167 (Fla. 3d DCA 2000) (reporting Mr. Michaels to the Florida Bar for “unprecedented levels of attorney misconduct”).

Mr. Michaels somehow is under the impression that cursing in his native tongue is somehow less contemptuous than cursing in English. However, we defer to the trial court’s finding, “I know what I saw.” Pursuant to Florida Rule of Criminal Procedure 3.830, the trial court’s reliance on her sight — coupled with record support from Mr. Michaels’ own mouth — is sufficient to uphold the finding of contempt based on “the mumble.” Viewing, as the trial court here did, the words mumbled in the context in which they were made, see Martinez v. State, 339 So.2d 1133, 1135 (Fla. 2d DCA 1976), we conclude the trial court correctly deemed them contemptuous.

Finally, there can be no question the conduct at issue here hindered the trial court in the administration of justice. See Ex parte Earman, 85 Fla. 297, 314, 95 So. 755, 760 (1923) (“A direct contempt is an insult committed in the presence of the court or of a judge when acting as such, or a resistance of or an interference with the lawful authority of the court or judge in his presence, or improper conduct so near to the court or judge acting judicially as to interrupt or hinder judicial proceedings.”); see also Woodie v. Campbell, 960 So.2d 877, 879 (Fla. 1st DCA 2007) (stating conduct which hinders the trial court in the administration of justice or which is calculated to lessen the court’s authority or dignity constitutes criminal contempt); accord Saunders v. State, 319 So.2d 118, 124-25 (Fla. 1st DCA 1975).

On the other hand, because we are granting relief on the hand gesture charge, we also reverse and remand this case for resentencing on the remaining charge. At the same time, although it seems a useless exercise, we refer Mr. Michaels once again to the Florida Bar for disciplinary proceedings.

Petition granted in part, denied in part, and remanded for further proceedings in compliance herewith.

WELLS, J., concurs.

LAGOA, J.

(concurring in part; dissenting in part).

Alexander J. Michaels (“Michaels”), an attorney, was found in direct criminal contempt by the trial court, and sentenced to two days incarceration. For the following reasons, I respectfully dissent as I would grant the petition and vacate the judgment and sentence in its entirety.

I. FACTUAL HISTORY

The direct criminal contempt charges stem from alleged conduct that occurred on the final day of a three-day probation violation hearing. Michaels represented the probationer. Because of Michaels’s behavior throughout the hearing, the trial court admonished him on several occasions to proceed in a respectful manner toward the trial court, witnesses, and attorneys.

On the last day of the hearing, May 17, 2013, Michaels was conducting the re-direct examination of a witness, when the Assistant State Attorney, Michael Von Zamft (“Von Zamft”), objected, and the following exchange occurred:

MR. MICHAELS: There was a phone call from — was there.
MR. VON ZAMFT: Objection, Your Honor. This is also outside the scope of cross.
MR. MICHAELS: Let’s talk about the gap between 8:15 and 4:33. There is no gap. There’s a communication. Can I finish?
THE COURT: Go ahead. There is a gap.
MR. VON ZAMFT: Your Honor, he threatens me one more time, I’m going to deal with him in a different way. I’m going to ask the Court to hold this man in contempt and potentially baker act him. I have case law to substantiate your right to substantiate the contempt.
THE COURT: I have the case law. I just want to address to [sic] things before I address the issue.
MR. MICHAELS: You are talking to me. I asked him not to interrupt. He continue [sic] to interrupt. I raised my voice at him to be quiet.-
THE COURT: That’s not the conduct I’m referring to. The raising of the voice I tolerated. It was the hand gesture and what was mouthed.
MR. MICHAELS: Nothing was mouth.

(Emphasis added)

After the above exchange, further discussion occurred and the trial court stated that it was going to conduct a hearing to show cause for direct criminal contempt for the “actions I’ve described to you making rude and violent gestures toward the prosecutor and mouthing the words ‘f* *k you’ to the prosecutor in my presence ... which I saw.”

After a brief recess, the trial court conducted a hearing on the direct criminal contempt charge. During the contempt hearing, Michaels was represented by counsel. Nine witnesses testified, including the two assistant state attorneys (Von Zamft and Stephen Mitchell) and Mi-chaels.

All of the witnesses testified that Mi-chaels was standing at the podium examining a witness when Von Zamft made an objection. In response to the objection, Michaels raised his voice and said words to the effect of “let me finish.” While making that statement, Michaels extended his right arm with his palm facing outward and in the direction of Von Zamft. Immediately thereafter, Von Zamft, angry and red-faced, stood from the prosecution table, walked to the prosecution’s podium, made a fist which he shook at the direction of Michaels and asked the trial court to find Michaels in contempt “and potentially baker act him.”

Significantly, every witness, including Yon Zamft, testified that they did not hear Michaels say the obscenity referred to by the trial court, i.e., “f* *k you” or see him mouth any words. They also uniformly testified that Michaels did not make an inappropriate, violent or physical hand gesture.

Michaels, however, testified that he did mouth offensive words, but he did so in Romanian, because “I learn over the years, not in court to use the English word f* *k you.”

At the conclusion of the contempt hearing, the trial court found Michaels in direct criminal contempt of court, and sentenced him to two days in jail. On that same day, the trial court entered a written judgment of contempt (“Order 1”), finding direct criminal contempt:

IT APPEARING TO THIS COURT that you have been found guilty of DIRECT CRIMINAL CONTEMPT OF COURT for FOUL LANGUAGE AND DISRESPECT TO THE COURT, inappropriate violent gestures, all of which obstructed the proceedings and administration of Justice. Including mumbling “F* *k you” at the podium. It is therefore ORDERED AND ADJUDGED that you are and stand convicted of Contempt of Court.

The trial court proceeded to enter a second order (“Order 2”), stating:

[Tjhat Alexander Michaels was in violation of a direct court order to conduct himself in a respectful and professional manner, that he violated that order by using foul language, To Wit: “F* *k You” and or the equivalent term in Romanian, as well as using violent and offensive physical gestures in an effort to obstruct the proceedings and the administration of Justice before this court and did in fact disrupt this Court. All conduct occurred in the presence of this court.
ORDERED AND ADJUDGED that Alexander Michaels is to stand conviction [sic] of Contempt of Court and is sentences [sic] to two days in the Dade County Jail.

(emphasis added).

On Friday, May 17, 2013, at 4:50 p.m., the trial court concluded the contempt hearing and ordered Michaels taken into custody to immediately begin serving the two-day sentence. Counsel for Michaels asked the trial court for a stay in order to appeal the trial court’s finding of direct criminal contempt, which the trial court summarily denied. Counsel for Michaels also requested an appellate bond, which the trial court also summarily refused. An emergency petition for writ of habeas corpus was filed with this Court, and this Court stayed the trial court’s sentence pending further review of the emergency petition.

II. ANALYSIS

Criminal contempt is defined as “any act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity.” Ex parte Crews, 127 Fla. 381, 173 So. 275, 279 (1937). Criminal contempt requires some willful act or omission calculated to hinder the orderly functions of the court. See Davila v. State, 100 So.3d 262, 264 (Fla. 3d DCA 2012); Thompson v. State, 618 So.2d 781, 784 (Fla. 5th DCA 1993); Sewell v. State, 443 So.2d 164, 165 (Fla. 1st DCA 1983). The main purpose of the law of contempt is to “appropriately punish for an assault or an aspersion upon the authority and dignity of the court or judge.” Ex parte Earman, 85 Fla. 297, 95 So. 755, 760-61 (1923). “[T]he punishment must be appropriate to the offense and not excessive.” Id. at 760. The power to punish for criminal contempt must be exercised cautiously and sparingly. Carroll v. State, 327 So.2d 881 (Fla. 3d DCA 1976).

“The standard to be applied in determining whether conduct is contemptuous is an objective one based upon a determination of the conduct’s tendency to hinder the administration of justice, rather than a subjective one concerned with the sensitivities of a particular judge. Importantly, as noted [by the Florida Supreme Court in Ex parte Crews ] above, the conduct alleged to be contemptuous must be calculated to cause harm.” Murrell v. State, 595 So.2d 1049, 1050 (Fla. 4th DCA 1992) (emphasis in original). See also Ex parte Earman, 95 So. at 762-63 (objective standard means that judge’s subjective perception of conduct will not satisfy requirement for holding an individual in direct criminal contempt). Moreover, where a judgment of contempt is not objectively supported by the court transcripts, it is procedurally defective. See Krueger v. State, 351 So.2d 47 (Fla. 3d DCA 1977). Direct criminal contempt must be proven beyond a reasonable doubt. McRoy v. State, 31 So.3d 273, 274 (Fla. 5th DCA 2010); Braisted v. State, 614 So.2d 639, 640 (Fla. 4th DCA 1993).

Florida Rule of Criminal Procedure 3.830 gives the trial court the authority to punish a criminal contempt “summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court.” Fla. R. Crim. P. 3.830; accord Gidden v. State, 613 So.2d 457, 460 (Fla.1993) (“Direct criminal contempt results from conduct committed in the actual presence of a judge and, consequently, may be punished summarily by the judge who saw or heard the conduct constituting the contempt.”).

Rule 3.830, however, requires that a judgment of direct criminal contempt “shall include a recital of those fadts upon which the adjudication of guilt is based.” Gidden, 613 So.2d at 459. “Purely conclu-sory statements will not meet the requirement of a recitation of facts. For example, citing the contemnor’s ‘unjudicious, unethical and intemperate conduct before the court’ is insufficient.” McRoy, 31 So.3d at 274-75.

With respect to the orders entered by the trial court, Michaels was found in direct criminal contempt for two acts that allegedly occurred during the same time period. Specifically, Michaels was found in direct criminal contempt for: (1) “inappropriate violent gestures” (Order 1) and “violent and offensive physical gestures” (Order 2); and (2) “mumbling “F* *k you” at the podium” (Order 1) and “using foul language, To Wit: ‘F* *k you’ and or the equivalent term in Romanian.” (Order 2).

With respect to the first act, I concur in reversing the conviction of direct criminal contempt as there is no evidence that Michaels used “inappropriate violent gestures” or used “violent and offensive physical gestures.” The record shows that Michaels raised his arm in response to an objection. Every witness — including the witness on the stand at the time of the incident, the two assistant state attorneys (including Von Zamft), and the judicial assistant of another trial court judge who was present in the courtroom at the time of the incident — testified that Michaels did not make an inappropriate, violent or physical hand gesture.

Despite this uniformly consistent and unrebutted testimony, the trial court found Michaels in direct criminal contempt for “inappropriate violent gestures” (Order 1) and for “using violent and offensive physical gestures.” (Order 2) The trial court further found that these gestures “obstructed the proceedings and administration of justice.” These findings are unsupported by any of the sworn testimony, and do not come close to' meeting the standard for holding an individual in direct criminal contempt. Indeed, since it is undisputed that Michaels did not obstruct the proceeding or the administration of justice with any improper physical gestures, there is no evidence that improper physical gestures by Michaels embarrassed, hindered or obstructed the court in the administration of justice. Instead, the record suggests that the only individual who may have obstructed and disrupted the proceedings was Von Zamft, who had to be restrained by his co-counsel. Accordingly, because the judgment of contempt regarding improper physical gestures is not objectively supported by the record, the judgment is procedurally defective and cannot sustain a conviction for direct criminal contempt.

Concerning the second act, the mouthed obscenity, the law is clear that while the use of an obscenity in a courtroom may be contemptuous, see Peters v. State, 626 So.2d 1048, 1049 (Fla. 4th DCA 1993), not “every profane utterance made in the courtroom is automatically contemptuous. [Indeed] [t]he challenged statements must be viewed in the context in which they were made.” Martinez v. State, 339 So.2d 1133, 1135 (Fla. 2d DCA 1976). Factors to be considered include whether the obscenity was heard in the courtroom, whether it was directed at the court, and whether the language hindered the ordinary function of the trial court. See Davila, 100 So.3d at 263 (reversing conviction for direct criminal contempt where defendant said “[f]* *k this court” under his breath, it was not heard by the trial court, and it did not interrupt proceeding); Woodie v. Campbell, 960 So.2d 877, 878 (Fla. 1st DCA 2007) (finding no direct criminal contempt where trial court did not hear appellant say one-word expletive directed toward the trial court and it did not interrupt ordinary function of the trial court; “To constitute direct criminal contempt, however, the profane statement must be heard by the court and committed in the court’s actual presence.”); Bryant v. State, 851 So.2d 823 (Fla. 2d DCA 2003) (granting petition for writ of habeas corpus and vacating judgment and sentence for direct criminal contempt where petitioner’s foul language was not directed toward the trial court or the judicial proceedings); Payne v. State, 486 So.2d 74 (Fla. 4th DCA 1986) (reversing direct criminal contempt conviction where judge heard one-word expletive, not the alleged comment which two witnesses claimed to have heard).

Applying the requisite objective standard, the record does not support a finding that an isolated, inaudible utterance in Romanian that was not directed at the trial court is sufficient to sustain a finding of direct criminal contempt. While Michaels admits that he mouthed an obscenity in Romanian under his breath during the hearing, it is undisputed that every witness testified that they did not hear Mi-chaels’s utterance. Moreover, the isolated utterance was done after opposing counsel had interrupted Michaels’s questioning, walked up to the podium, shook his fist at Michaels, and threatened to move to have Michaels involuntarily committed under the “Baker Act.”

Additionally, there is nothing in the record to indicate that the utterance was directed at the trial court, nor is there anything in the record to establish how the trial court translated Mi-chaels’s mumbled utterance from Romanian to the English obscenity quoted in its orders. Indeed, the trial court’s two orders make it clear that the trial court is not even sure whether Michaels muttered “F* *k you” or whether he said something in Romanian. The trial court’s uncertainty confirms the failure to satisfy the “beyond a reasonable doubt standard” required for finding an individual in direct criminal contempt. Because the power of contempt must be exercised rarely and cautiously, “[t]he provocation must never be slight, doubtful or of shifting interpretations. The occasion should be real and necessary, not murky, and not ameliorated in some less formal manner.” McRoy, 31 So.3d at 275; Davila, 100 So.3d at 264.

The trial court’s order also warrants reversal as the record lacks the necessary intent required to sustain a finding of direct criminal contempt. “Criminal contempt requires some willful act or omission calculated to hinder the orderly functions of the court.” Davila, 100 So.3d at 264 (emphasis added). See also Woods v. State, 987 So.2d 669, 677 (Fla. 2d DCA 2007) (“[A]n intent beyond mere rudeness was required before the court could adjudicate Mr. Woods guilty of direct criminal contempt. The trial court had to establish that Mr. Woods’ statement, coupled with his actions, were intended to constitute an imminent threat to the administration of justice.”); Woodie, 960 So.2d at 878-79 (“Criminal contempt requires some willful act or omission calculated to hinder the orderly functions of the court.”). See generally Ex parte Earman, 95 So. at 762-63 (direct criminal contempt cannot be sustained where record did not establish intent to embarrass the court in the administration of justice).

Significantly, nothing .in the record establishes beyond a reasonable doubt that Michaels intended to disrupt or hinder the court proceeding by his inaudible utterance in Romanian. There is no evidence that Michaels’s isolated utterance was “calculated to cause harm” — a prerequisite for a finding that the conduct charged is contemptuous; and the record is also devoid of any evidence of willful or deliberate intent to disrupt. In fact, the record evidence is to the contrary. Under oath, Michaels testified that he mouthed a profanity in Romanian, and not in English, because he did not want to interrupt the proceedings or be offensive. Moreover, Michaels was reacting to Von Zamft’s threat to Baker Act him, and Von Zamft’s physical behavior that required his fellow assistant state attorney to physically restrain him, not any statement or ruling by the trial court. See, e.g., Davila, 100 So.3d at 264 (during contempt hearing, defendant explained that he was frustrated by the system and his situation so that his statement “F* * ⅜ the court” was not calculated “to hinder the functions of the court, but merely spoke[n] out of understandable frustration”); Woods, 987 So.2d at 678 (defendant’s expletive “is somewhat understandable given that he was charged with being a felon in possession of a firearm though he had never been convicted of a felony”). See also Ex parte Earman, 95 So. at 762 (unrebutted testimony under oath established lack of intent and therefore could not sustain adjudication of direct criminal contempt).

“Contempt does not exist just because a judge feels aggrieved or vexed.” McRoy, 31 So.3d at 274; see also Ex parte Earman, 95 So. at 762-63. As this Court has previously held, “[i]n the absence of any evidence of willful or deliberate intent to disrupt, it should be rare that the mere use of a word or phrase which may have negative or distasteful connotations will be sufficient to constitute criminal contempt.” Davila, 100 So.3d at 264 (quoting Murrell v. State, 595 So.2d 1049, 1051 (Fla. 4th DCA 1992)). In reversing the finding of criminal contempt, this Court in Davila found that “when given the chance to explain, Davila stated that he was frustrated with the system and his situation and didn’t mean to ‘come in that form and tone.’ This clearly shows that Davila did not calculate to hinder the functions of the court, but merely spoke out of understandable frustration.” Id. at 264. Here, as in Davila, the record fails to show that Mi-chaels intended to hinder the functions of the court. Indeed, as in Davila, when given the chance to explain his conduct Michaels testified that when he becomes frustrated he reverts to his native language, Romanian, so that he will not be offensive. The unrebutted testimony under oath, therefore, established that Mi-chaels lacked the intent necessary to be found in direct criminal contempt.

Additionally, the ability of the trial court to continue with its normal functions after the alleged contemptuous conduct occurred weighs against any finding that the conduct hindered the administration of justice. See Woodie, 960 So.2d at 879 (calling judge a “stupid bitch” as defendant walked past counsel table “did not interrupt or hinder the orderly functions of the court, as the trial court had moved on to another hearing”); Davila, 100 So.3d at 264 (defendant’s utterance of “F* * * this court” under his breath did not interrupt the proceedings or hinder administration of justice where trial court moved on to next case without hesitation). See also Ex parte Earman, 95 So. at 763 (A letter allegedly accusing court of susceptibility to corruption did not hinder administration of justice where judge “did, in fact dispose of the case in due course within his judicial function. This shows that the judicial functions were not impeded.”). Here, the record shows that the trial court proceeded to sustain an objection after Michaels muttered the inaudible comment in Romanian.

Notwithstanding the foregoing, the majority finds that an inaudible comment muttered in a foreign language that is not understood by the Court or any of those present at the hearing, that was not directed at the bench, and that was made in response to opposing counsel’s inappropriate and disruptive behavior can form the proper basis for direct criminal contempt. Significantly, the majority’s opinion states that “there can be no question the conduct at issue [the mumble] hindered the trial court in the administration of justice.” As discussed above, none of the three cases cited by the majority—Ex parte Earman, Woodie, and Saunders — support that conclusion.

In each of those cases, the contemptuous conduct was directed at the bench. That did not occur here. In Saunders, the only one of these three cases that affirmed a finding of direct criminal contempt, the defendant, after shaking his fist at the bench, called the trial court a “son-of-a-bitch” as he was being led out of the courtroom. This profanity was heard by the bailiff and transcribed by the court reporter. Nothing like that occurred here. Moreover, both Earman and Woodie found a lack of intent necessary to sustain a finding of direct criminal contempt. As discussed above, the record here is bereft of support for any such finding by the trial court, and, in fact, the only evidence on that point directly contradicts the conclu-sory statement in the trial court’s order. I, therefore, respectfully dissent as I do not believe that either the facts or the law provide a basis for the trial court’s orders finding Michaels in direct criminal contempt on this ground, and the majority’s decision is contrary to this Court’s opinions in both Davila and Krueger.

Finally, the trial court’s sentence of two (2) days imprisonment is directly contrary to the Florida Supreme Court’s mandate that the punishment must be appropriate to the offence and not excessive. “[T]he 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, 95 So. at 761. Any imprisonment for an inaudible utterance not directed at the trial court, made in response to frustration with opposing counsel’s own behavior, and muttered in a foreign language unknown to either the trial court or any of the individuals present in the courtroom is not appropriate to the charged offense and is excessive.

Direct criminal contempt is a serious matter, and an officer of the court who manifests disdain for the bench and disrupts court proceedings and the administration of justice warrants being held in direct criminal contempt. Michaels’s actions, while unprofessional, do not merit that level of penalty. Indeed, his actions, as the witnesses present in the courtroom uniformly testified, did not disrupt or hinder the administration of justice. If anything, the record suggests that it was the behavior of Von Zamft that disrupted the proceedings that particular afternoon.

We do and should expect better behavior from attorneys licensed by the Florida Bar, and Florida trial courts are well within their discretion to deploy the various tools available to them in order to curtail and penalize the type of behavior that occurred that afternoon. In this instance, however, the trial court moved too quickly to mete out the severest penalty, direct criminal contempt and incarceration, as evidenced by the flaws in both of the orders. “Trial judges must be allowed to control their courtrooms. They must have the tools suitable to the purpose when the loss of control is threatened and the dignity and purpose of the court are challenged. However, because of the potency of the powerful remedy of criminal contempt, we must carefully guard the requirements for its use, premised only on indisputable record support.” McRoy, 31 So.3d at 275.

III. CONCLUSION

“[T]he power to adjudge anyone with contempt is always to be exercised with care and circumspection.” State v. Clemmons, 150 So.2d 231, 234 (Fla.1963).

[Jjudges should approach the possible exercise of this unique power with the same hesitant caution and wariness one would use in picking up a glowing ember. It must be used only rarely and with circumspection. The provocation must never be slight, doubtful, or of shifting interpretations. The occasion should be real and necessary, not murky, and not ameliorated in some less formal manner.

Woods, 987 So.2d at 676 (quoting Schenck v. State, 645 So.2d 71, 74 (Fla. 4th DCA 1994) (citations omitted)).

Here, the requisite proof required for direct criminal contempt is sorely lacking. Because the record fails to support a finding of direct criminal contempt on both charged offenses, I would grant the petition for writ of habeas corpus, and remand with directions to the trial court to vacate the judgment and sentence for direct criminal contempt.

APPENDIX

The pertinent testimony of the seven witnesses not involved in the altercation, as well as the pertinent testimony of Von Zamft, is as follows:

1. Elizabeth Martin
Q. Were you here today when the incident that occurred with Mr. Michaels and Mr. Vonzamft?
A. Yes. Just to clarify I wasn’t here for some of the other days that this was going on, just today.
Q. Where were you seated when the incident occurred?
A. At the defense counsel table.
Q. Where was Mr. Michaels at that time?
A. At the podium.
Q. So his back was toward you?
A. Yes.
A. Correct.
Q. Does there come a time when Mr. Michaels was asking a question of one of the witnesses?
A. Yes.
Q. Had he completed the question at the time the assistant state attorney made an objection?
A. To my recollection, no.
Q. And what did Mr. Michaels do at that point?
A. He made a motion with his hand sort of like to shush Mr. Vonzamft.
Q. Did he say anything or just make the motion?
A. I don’t remember exactly what was said, but I know I saw the motion.
Q. Did you hear anything such as shut up or sit-down or anything like that?
A. No.
Q. What did Mr. Vonzamft do when that motion was made?
A. He stood up from the prosecution table. He came round the table to the podium. He started shaking with what looked like anger. His face got really red. He and Mr. Michaels started raising their voices at each other. He put his arm out in a fist.
Q. When you say “he put his arm out”?
A. Mr. Vonzamft put his arm out in a fist and Mr. Mitchell stood up from the table and physically pushed down Mr. Vonzamft’s arm.
Q. During that entire situation that you just described did Mr. Michaels leave the podium he was at?
A. No.
Q. Did he make a fist or any threatening gesture toward Mr. Vonzamft.
A. No.
Q. Did you hear him utter any expletive profanity curse word?
A. No.
2. Karen Ruiz:
Q. Were you present today during the probation violation hearing with the incident between Mr. Michaels and Mr. Vonzamft?
A. Yes, I was.
Q. Where were you seated?
A. I was at the defense table.
Q. So, again Mr. Michael’s back was toward you?
A. Yes.
A. Correct.
Q. Did there come a time when Mr. Michaels was asking a question of one of the witnesses?
A. Yes.
Q. And was he interrupted in that questioning?
A. Yes, he was.
Q. By whom?
A. It was an objection by Mr. Von-zamft.
Q. What did Mr. Michaels do?
A. Mr. Michaels does what he always does. I’ve worked with him for the past three years. He does like that.
Q. You are indicating he put his hand up?
A. In a non-violent manner.
Q. With his hand open, with his palm showing?
A. It was never a fist, never anything. Just relax let me talk.
Q. So, possibly asking let me finish the question before you object?
A. Perhaps.
Q. What did Mr. Vonzamft do?
A. He got up from the table. He was very red, start rolling his eyes. He stood up. He says, If he continues on doing this, I’m going to have to handle this in my own way. Then he asked the judge to hold him in contempt, he need to be baker acted. Then upon Mr. Mitchell got up. I have no idea if Mr. Vonzamft was going to do something, then he put himself physically in the middle between Mr. Michaels and Mr. Vonzamft.
Q. During that little incident you just described, did Mr. Michaels leave the podium he was at?
A. He never left the podium. I know him very well. He actually calmed down. I know when he lowers his voice and he was very calm, very subdued. He was very relaxed. He never responded anything back.
Q. Again did you hear him utter any profanity, curses at anytime?
A. I never heard him.
Q. Did you hear him tell Mr. Vonzamft, tell him to shut up?
A. I never heard any of that.
3. Julie Santana:
Q. What is your name?
A. Julie Santana.
Q. How are you employed?
A. Judicial assistant.
Q. For whom?
A. Samantha Ruiz-Cohen.
Q. Were you here today watching the probation violation hearing?
A. Yes.
Q. Did you witness the incident that we have been speaking about?
A. I did..
Q. Where were you seated?
A. Behind defense counsel on the second row.
Q. And again was Mr. Michaels here at the podium?
A. Yes.
Q. Was he asking questions of a witness?
A. He was.
Q. Was he at some point interrupted in one of those questions?
A. Yes, he was.
Q. By whom?
A. By Mr. Vonzamft.
Q. When he got interrupted in asking the question, what did Mr. Michaels do?
A. Mr. Michaels went like this with his hand.
Q. You are indicating he extended?
A. He extend his hand and went like that.
Q. With his palm outward?
A. Correct.
Q. He didn’t make a fist?
A. No.
Q. He didn’t shake it at him?
A. No.
Q. What was Mr. Vonzamft’s response?
A. Mr. Vonzamft got up from where he was sitting, said something, I’ll handle this my way, then requested that Mr. Michaels either be held in contempt or baker acted, at which time he made a fist. Mr. Michell, who is now smirking over there, stood up and held Mr. Von-zamft from approaching Mr. Michaels.
Q. During that incident, at anytime did Mr. Michaels leave the podium where he was standing at?
A. No, he did not.
Q. Did he make any fist or threatening gestures?
A. No, he did not.
Q. Did at anytime you hear Mr. Mi-chaels tell Mr. Vonzamft anything in the nature of shut up or anything like that?
A. No.
Q. Did you ever hear Mr. Michaels utter any profanity, expletive, curse words?
A. No, I did not.
MR. SPEILLER: No other questions.
THE COURT: Anything else. Okay. Miss Santana, you were here during the incident as well as the commentary after. Did you hear when Mr. Michaels in response to the Court’s question about why he had cursed before I had said what the words were. When Mr. Mi-chaels admitted to having cursed that it was in Romanian?
THE WITNESS: I heard that he said, What I said was in my own language. You wouldn’t be able to understand what I said, that’s what I heard.
THE COURT: Did you hear when he said whenever he curses or gets upset he uses his own language to not offend other people in the courtroom?
THE WITNESS: Again, what I heard him say was whenever I get mad I speak in Romanian, my own language.
THE COURT: Did you hear him speak in Romanian at the time?
THE WITNESS: No, I did not.
THE COURT: So if he had said something in Romanian, cursed in Romanian or English you wouldn’t have been able to hear it?
THE WITNESS: Correct.
THE COURT: Would you have been able to hear this mouthed?
THE WITNESS: No.
4. Reginald, Hope:
Q. What is your full name?
A. Reginald Hope.
Q. How are you employed?
A. Private investigator.
Q. And you were the witness who was testifying when the incident occurred, correct?
A. Yes.
Q. And you were seated where you are seated now?
A. Yes.
Q. And Mr. Michaels was standing essentially where I am, correct?
A. Yes.
Q. So he was facing you head on?
A. Yes.
Q. Was there a point at which he was asking a question and was interrupted by the assistant state attorney?
A. Yes.
Q. When that happened what did Mr. Michaels do?
A. Actually Mr. Vonzamft made an objection and Mr. Michaels said, Wait until I’m done or something to that effect loud. In a loud voice. Mr. Vonzamft came from around the desk and said basically if you raise your voice at me again I’ll handle this in a different way and that’s when Mr. Mitchell came round.
Q. Did Mr. Vonzamft make any kind of motion?
A. I didn’t see it.
Q. Did you take his words as joking or threatening?
A. Naw, he was pretty upset.
Q. Did anybody try to stop Mr. Von-zamft?
A. Mr. Michell.
Q. How did he do that?
A. He just came from round the desk and kind of got between the two.
Q. During this entire little incident did Mr. Michaels ever leave the podium he was standing at?
A. No.
Q. Did he say anything to Mr. Von-zamft?
A. No.
Q. Did he make any threatening motions or gestures toward either Mr. Von-zamft or Mr. Mitchell, who is now in between them?
A. Wdien he was saying let me finish the question or something like that he kind of did like this.
Q. You are also indicating he extend his right hand with the palm out?
A. Yeah, like basically. He kind of yelled out, Let me finish the question.
Q. At any time during the incident did you hear Mr. Michaels utter any kind of expletive, profanity, curse words?
A. No.
Q. You were facing him during the entire time?
A. I was sitting here, but I was facing them.
Q. Did you at anytime—
THE COURT: Facing them as in the State.
Q. At anytime did you see Mr. Mi-chaels move his lips?
A. No.
Q. Do you have any indication that he uttered any kind of profanity, expletive?
A. No, I don’t because as I said I was facing the State.
Q. Was there anything he did that you took to understand as him cursing, issuing profanity or expletive?
A. No.
5. Margery Joseph:
Q. What is your name?
A. Margery Joseph.
Q. And have you been here for the proceedings that were occurring today?
A. Yes.
Q. Where were you sitting?
A. Third row behind the defense.
Q. And Mr. Michaels was here at the podium?
A. Yes.
Q. Did you hear him when he was interrupted by the assistant state attorney?
A. Yes.
Q. Did he say anything in the nature of shut up or anything like that?
A. No.
Q. What did he do?
A. He made a hand gesture like this.
Q. Again you are indicating he extended his right hand with the palm out?
A. Extended his hand like this.
Q. He didn’t make a fist or shake it?
A. No.
Q. Did you see what the assistant state attorney did at that point?
A. Well, at that point he was still-sitting and talking and then after that he got up and come to the podium right there. He looks like he was mad and then he was talking to the judge, then this gentleman come by him, stood by him, and then he was asking the judge to baker act Mr. Michaels or held him in contempt.
Q. When you stated the other person got up between Mr. Michaels and Mr. Vonzamft, you are referring to the assistant state attorney, Mr. Mitchell?
A. Yes.
Q. At anytime did you hear Mr. Mi-chaels say any curse words?
A. No.
Q. When Mr. Vonzamft got up and approached him, did Mr. Michaels leave where he was standing?
A. No.
Q. Did he make any threatening gestures toward Mr. Vonzamft?
A. No.
6. Ashley Dale:
Q. What is your name, ma’am.
A. Ashley Dale.
Q. Have you been here through the proceeding today in this case?
A. Correct.
Q. And why are you here?
A. I’m here to support Devin Williams, in his case.
Q. Are you related to him?
A. No.
Q. Were you here when the incident occurred that we have been speaking about?
A. Correct.
Q. Where were you seated?
A. In the third row right next to Margery Joseph.
Q. Mr. Michaels was asking a question of the witness?
A. Correct.
Q. He was interrupted?
A. Correct.
Q. What did Mr. Michaels do at that point?
A. Mr. Michaels had a pen in his hand and he went like this to wave his— basically saying stop, at the same time his head was turned that way.
Q. Did he make a fist or any kind of threatening gesture toward Mr. Von-zamft?
A. No.
Q. Or anybody at the prosecution table?
A. No.
Q. What did Mr. Vonzamft do at that point?
A. He got upset. I guess he was— after he objected, got upset, stood up, started shaking looking really red, walk round the table, came toward the podium, then I guess Mr. Mitchell — sorry I don’t know if that’s his name.
Q. The other gentleman sitting at the prosecution table?
THE COURT: Mr. Mitchell.
A. Came round the table as well and put his hands like this, like basically to stop him from what the other gentleman was doing with his hand.
Q. When you say put his hand like this—
A. Physically put his hand down.
Q. What you are saying is Mr. Mitchell forced Mr. Vonzamft’s fist down?
A. Correct.
Q. During that incident did Mr. Mi-chaels leave the podium where he was standing?
A. No.
Q. Did he say anything to Mr. Von-zamft?
A. From where I’m sitting, no. I did not see it, but as I remember saying when he first put his hand like that with his pen in his hand his head was faced that way.
Q. Inside the courtroom. I mean, if Mr. Michaels had been yelling would you have heard him?
A. He was not yelling. Only time he yelled when he was saying, Let me finish, when his head was turned that way.
Q. Only time he raised his voice was when he was interrupted and said let me finish?
A. Right.
Q. At any time did you hear Mr. Michael say any curse words?
A. No.
Q. At anytime did Mr. Michaels make any threatening moves or gestures toward the prosecution?
A. No, nothing was heard but from what I’m hearing it was mouth, but from where I’m sitting I can’t see anything being mouth from where I’m sitting.
Q. When you said that somebody made a fist, who was that?
A. The fist was coming from, I don’t know his name but the gentleman in the navy blue.
Q. At the prosecution table with the beard?
A. Yes.
Q. Mr. Vonzamft?
A. Yes.
7. Stephen Robert Mitchell:
Q. What is your full name?
A. Steven Robert Mitchell.
Q. You have been present throughout these proceedings and the probation violation hearing?
A. Yes.
Q. You don’t work for Mr. Michaels?
A. Absolutely not.
Q. Where are you employed?
A. Miami Dade State Attorney Office.
Q. And you were here during the incident that’s been described by the witnesses?
A. Yes.
Q. Where were you seated?
A. I was seated probably twenty-five feet away from here right now at the table for the prosecutor.
Q. Mr. Michaels was questioning Mr. Hope, correct?
A. Correct.
Q. In the middle of a question, there was an interruption at one point?
A. There was an objection.
Q. Who made the objection?
A. Mr. Vonzamft.
Q. What did Mr. Michaels do?
A. Mr. Michaels turned toward Mr. Vonzamft, raised his voice and told him not to interrupt. I can’t remember specifically what was said, but the records should state exactly what Mr. Michaels said at that point.
Q. Did he make any type of gesture?
A. Gesture with his hands.
Q. Yes.
A. Yes.
Q. What was that?
A. He extended his arm out. I couldn’t see his actual fingers, but he extended his arm toward Mr. Vonzamft.
Q. What did Mr. Vonzamft do at that point?
A. Mr. Vonzamft stood up from his chair and approached the State podium.
Q. Was he saying anything or doing anything?
A. He was addressing the Court.
Q. What was he saying?
A. He was objecting based off of Mr. Michaels questioning to Mr. Hope.
Q. Was he saying anything else about what should be done with Mr. Michaels?
A. He pointed at Mr. Michaels and asked the Court to have him held in contempt or baker acted.
Q. At anytime did Mr. Vonzamft make a fist?
A. No.
Q. Did you at any point get up and approach Mr. Vonzamft?
A. Yes.
Q. How did you approach him?
A. I got up from the chair that I was sitting in and approached the State’s podium.
Q. Was that to his right or left?
A. I was standing to Mr. Vonzamft’s left.
Q. So you were in between Mr. Von-zamft and Mr. Michaels?
A. Correct.
Q. Did you do anything as far as attempting to restrain Mr. Vonzamft?
A. I wouldn’t say it like that. I put my left hand on Mr. Vonzamft’s left shoulder in order to keep him calm.
Q. Why did he need to be kept calm?
A. He was calm. I just didn’t believe that things need to get out of control and I don’t believe they were out of control on that point by Mr. Vonzamft.
Q. What was Mr. Michaels doing when that was going on?
A. My back was toward Mr. Michaels.
Q. Did you hear him yelling, screaming, ranting and raving?
A. I don’t know about yelling and screaming, but he was raising his voice. I couldn’t tell you actual words he was saying at that point.
Q. Did you recall him saying any expletive, profanity, cursing?
A. He did later.
Q. At that point did you hear anything?
A. Correct, I couldn’t tell you.
8. Mr. Von Zamft
Q. Mr. Michaels was asking a question of Mr. Hope, correct?
A. Yes.
Q. And you tried to interpose an objection?
A. I did interpose an objection. That’s what an objection does.
Q. He extended his hand, right?
A. Absolutely.
Q. He remained here at the podium?
A. He did.
Q. Did you at anytime make a fist?
A. Yes.
Q. And what were you doing while you were making the fist?
A. Approaching the podium.
Q. That’s also bringing you closer from counsel table to where Mr. Michaels is?
A. No, its bringing me to the State’s podium.
Q. State’s podium isn’t closer to Mr. Michaels and counsel table?
A. Of course it is, but that’s where I go to speak to the Court.
Q. Did you hear Mr. Michaels utter any kind of profanity or expletive?
A. Mr. Michaels was mouthing whatever he was mouthing. I could not read his mouth from where I was.
Q. You have no idea what it was he was mouthing?
A. No, I do not know what he was mouthing.
Q. He could have been saying the lord’s prayer?
A. You wouldn’t want me to speculate on what he was mouthing.
Q. Was there a point when Mr. Michell came and got between you and Mr. Mi-chaels?
A. Yes.
Q. What did Mr. Mitchell do at that time?
A. Said relax.
Q. Did he put his hand on you or make any gesture to you?
A. Put his hand on my shoulder and said relax.
Q. All right. You were here during the read back, correct?
A. Yes.
Q. And after the objection and I guess I wasn’t here, but I guess after you sat back down, Mr. Michaels asked the Court can I finish, right?
A. If that’s what the read back says.
Q. And the judge said go ahead?
A. Then I made another objection.
Q. You continued with the objection?
A. No, I made another objection.
Q. Mr. Michaels hadn’t insulted or done anything to you at that point, right?
A. He was continuing his actions. I made another objection. When I made that objection is when he put his hand out?
Q. He was trying to ask a question of the witness?
A. And I made an objection.
Q. And?
A. Which is when he put his hand out.
Q. Right. When he puts his hand out, he remained here at defense podium.
A. Yes, and I went to State’s podium.
Q. He didn’t say anything threatening to you, correct?
A. If he did, I did not hear it.

      . There is no simultaneously created description of the gesture in the record.

      . Early in the proceeding, Mr. Michaels blurted out to the trial court, “I don’t know what common sense is. I lost that a long time ago.” Tr. 203, May 13, 2013. Having reviewed the record, we cannot quarrel with Mr. Michaels’ self-assessment.

      . Counsel for the State of Florida has provided us with evidence of three occasions on which Mr. Michaels was disciplined by the Florida Bar since the issuance of our sanction opinions.

      . The testimony of the seven (7) witnesses not involved in the altercation is attached in an appendix to this dissent, as well as the pertinent testimony of Von Zamft.

      . Specifically, Michaels testified:
      Q: Other than extending your hand and telling him to let you finish the question that you asked before he objected, did you make any verbal threats?
      A: No, I never threaten anyone. No verbal threats. However, I mumble few words in my native language.
      Q: What is your native language?
      A: Romanian.
      Q: When you say you mumbled them?
      A: There is no sound coming out of my mouth. I don't think anyone could possibly know what I said no matter who they are.
      Q: When you get frustrated do you revert to your native language?
      A: I do.... I learn over the years, not in court to use the English word f* *k you. That's what I’m accused apparently by this Court or mimicking with my lips.... I didn't say them. I didn't voice them. I just mimic them with my mouth. If that's contempt, I guess it should be intent. My intention was not offend anybody, not to be contemptuous. That was my last question and I was hoping to go home. Be finish and be done with it.

      Q: To your knowledge does Judge Miranda, Mr. Hope or anyone else who was in this courtroom at the time speak or understood [sic] Romanian?
      A: There is [sic] a lot of people in this courtroom, none of them speak Romanian.
      Q: When you revert to Romanian that's so you will not be offensive?
      A. Exactly.

      . Specifically, the following exchange occurred:
      THE COURT: Unfortunately for you I saw it and I understood it. It’s very unprofessional. At the point we address it I’ll address all of it on the record. The gap that was referred to in the testimony, just so that is clear was a gap in text messages, not a gap in communication. So your objection as to beyond the scope is sustained.
      MR. MICHAELS: It’s redirect.
      THE COURT: It’s redirect bust [sic] it's not redirect as to the initial threat. It has to be something that was spoken about on cross.

      . Saunders v. State, 319 So.2d 118 (Fla. 1st DCA 1975).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eric Lee WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4835.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
    Eric Lee Watts, pro se.
   PER CURIAM.

Affirmed. See Dowdy v. Singletary, 704 So.2d 1052 (Fla.1998); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); Campbell v. State, 884 So.2d 190 (Fla. 2d DCA 2004); Anderson v. State, 862 So.2d 924 (Fla. 2d DCA 2003); Nedd v. State, 855 So.2d 664 (Fla. 2d DCA 2003); Dwyer v. State, 981 So.2d 606 (Fla. 4th DCA 2008).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Rashawn D. HUTCHINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4837.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
    Rashawn D. Hutchins, pro se.
   PER CURIAM.

Affirmed. See Walle v. State, 99 So.3d 967 (Fla. 2d DCA 2012); Hutchins v. State, 56 So.3d 775 (Fla. 2d DCA 2011) (table decision); Hutchins v. State, 41 So.3d 222 (Fla. 2d DCA 2010) (table decision); Hutchins v. State, 994 So.2d 310 (Fla. 2d DCA 2008) (table decision); Hutchins v. State, 959 So.2d 1195 (Fla. 2d DCA 2007) (table decision); Guzman v. State, 110 So.3d 480 (Fla. 4th DCA 2013); Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Kenny Allan McMILLAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4981.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
    Kenny Allan McMillan, pro se.
   PER CURIAM.

Affirmed. See State v. Roby, 246 So.2d 566 (Fla.1971); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Lopez v. State, 833 So.2d 283 (Fla. 5th DCA 2002); Roberts v. State, 813 So.2d 1016 (Fla. 1st DCA 2002); Freeny v. State, 621 So.2d 505 (Fla. 5th DCA 1993).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Eric WELCH, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4997.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
    Eric Welch, pro se.
   PER CURIAM.

Affirmed. See Betancourt, v. State, 804 So.2d 313 (Fla.2001); Carpenter v. State, 884 So.2d 385 (Fla. 2d DCA 2004); Boyd v. State, 880 So.2d 726 (Fla. 2d DCA 2004); Cooper v. State, 800 So.2d 243 (Fla. 2d DCA 2001); Lane v. State, 981 So.2d 596 (Fla. 1st DCA 2008); Williams v. State, 907 So.2d 1224 (Fla. 5th DCA 2005).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    AMALGAMATED TRANSIT UNION LOCAL 1593, Appellant, v. HILLSBOROUGH AREA REGIONAL TRANSIT, Appellee.
    No. 2D12-6033.
    District Court of Appeal of Florida, Second District.
    April 4, 2014.
    Rehearing Denied June 9, 2014.

      Tobe Lev of Egan, Lev & Siwica, P.A., Orlando, for Appellant.
    Mark E. Levitt and Marc A. Sugerman of Allen, Norton & Blue, P.A., Winter Park, for Appellee.
    Richard A. Sicking, Coral Gables, for Amicus Curiae Florida Professional Firefighters, Inc., International Association of Firefighters, AFL-CIO.
    Rene F. Ruiz, III, and J. Freddy Perera of Stearns Weaver Miller Weissler Alha-deff & Sitterson, P.A., Miami, for Amicus Curiae Academy of Florida Management Attorneys.
   NORTHCUTT, Judge.

Amalgamated Transit Union Local 1593 has appealed a decision by the Public Employees Relations Commission (PERC) regarding the proper application of the impasse provisions contained in Florida’s public employee collective bargaining law, set forth in Part II of Chapter 447, Florida Statutes (2011). See Fla. R. App. P. 9.030(b)(1)(C). We reverse.

The Union is the collective bargaining agent representing bus drivers, street car operators, and other workers employed by the Hillsborough Area Regional Transit Authority (HART). In June 2010, the Union and HART began negotiating a new contract to succeed their existing one, which ended in September 2010. The parties reached agreement on seventy-one articles but could not agree on six others. In February 2011, HART declared an impasse on those six articles. PERC appointed a special magistrate to conduct a hearing and to recommend resolutions of the issues. The Union accepted all of the magistrate’s recommendations, but HART rejected the recommended resolutions on three articles.

HART scheduled a legislative body hearing in September 2011 to resolve the three issues that remained at impasse. See § 447.403(4)(a). On the day of the scheduled hearing the parties reached a tentative agreement on those issues shortly before the hearing was to begin. In November 2011, the Union sent a proposed contract incorporating the new tentative agreement to its members with a recommendation to ratify, but the members rejected it.

The Union sought to return to the bargaining table for further negotiations, but HART refused. Instead, over the Union’s objection HART rescheduled the legislative body hearing for December 2011. The hearing went forward and the legislative body resolved the disputed issues in HART’s favor. HART then sent the Union a proposed agreement to ratify. When the Union refused to conduct a ratification vote, HART imposed the articles resolved by the legislative body. See § 447.403(4)(e).

Thereafter the Union filed charges with PERC alleging that HART committed an unfair labor practice by refusing to resume negotiations after the failed ratification vote, thus violating section 447.501(1)(a) and (c); conducting a legislative body impasse hearing instead of resuming bargaining; and unilaterally altering terms and conditions of employment by implementing the articles resolved at the impasse hearing. HART countered with an unfair labor practice charge premised on the Union’s refusal to hold a ratification vote on the proposed collective bargaining agreement tendered by HART after the legislative body impasse hearing.

PERC appointed a hearing officer to hear the charges. In August 2012, the hearing officer issued a recommended order in which he concluded that HART had committed an unfair labor practice on the three grounds the Union alleged and that the Union had not committed an unfair labor practice by refusing to conduct a ratification vote after the legislative body impasse hearing.

HART filed exceptions to the recommended order. PERC issued a final order granting several of the exceptions. It concluded that HART did not commit an unfair labor practice by refusing to return to bargaining after the Union members rejected the September 2011 tentative agreement, and it dismissed the Union’s charge. Amalgamated Transit Union, Local 1593 v. Hillsborough Area Reg’l Transit Auth., 39 F.P.E.R. 175, 2012 WL 6560996 (2012).

PERC’s resolution of this case was at odds with its prior decision in Amalgamated Transit Union, Local 1701 v. Sarasota County Board of County Commissioners, 36 F.P.E.R. 453, 2010 WL 6767889 (2010), aff'd, 88 So.3d 945 (Fla. 2d DCA 2012) (table decision) (“Sarasota County”). In that case the parties reached a tentative agreement which was then rejected by the union membership. The parties returned to bargaining, but when they could not agree on several issues, the county declared an impasse. The parties continued to negotiate after the impasse was declared, and they reached another tentative agreement. The union membership then rejected this second tentative agreement. The parties proceeded to the previously scheduled legislative body hearing, at which the legislative body ruled in favor of the county’s positions on the impasse issues. Afterward, the parties were unable to agree on a proposed contract to submit for ratification. They engaged in mediation and produced a tentative agreement. But the union rejected the agreement rather than submit it for a ratification vote by the membership. Thereafter, over the union’s objection the county imposed the provisions that had been approved at the legislative body hearing.

When deciding the parties’ respective unfair labor practice charges in Sarasota County, PERC declared that, by proceeding to a legislative body hearing after the union membership rejected the second tentative agreement, the parties had misapplied the impasse resolution procedure set forth in section 447.403. The Commission noted that, because the impasse statute ultimately allows a legislative body to unilaterally impose employment terms, it is an exception to the bargaining rights contained in Chapter 447. As such, PERC wrote, the statute must be strictly construed.

Having reached their second [Tentative Agreement], the parties resolved the existing impasse and were no longer at impasse, irrespective of the [employees’] eventual rejection of that TA. Because the parties were no longer at impasse, the County Commission was not authorized to act as the legislative body to resolve any bargaining issues, and the ensuing legislative body action was void from the outset. The County and the ATU should have resumed negotiations after the second TA was rejected by the employees. § 447.309(4), Fla. Stat. (2010) (providing that if an agreement is not approved by the employer and the employees, it will be returned for further negotiations); see also Martin County Education Association v. Martin County School Board, 29 FPER ¶ 324 (G.C. Summary Dismissal 2003) (determining that failure to return to negotiations following the employees failure to ratify a negotiated pay plan contravened the statute and the union erred in invoking the impasse procedure at that point instead).

(Emphasis supplied.) The Commission concluded that “because the legislative body’s resolution of the non-existent impasse was void,” the union did not commit an unfair labor practice by refusing to submit a document incorporating the legislatively resolved issues for ratification by its membership, and the county did commit an unfair labor practice “by imposing the results of that void action.” This court affirmed the decision. Sarasota Cnty. Bd. of Cnty. Comm’rs v. Almagamated Transit Union, Local 1701, 88 So.3d 945 (Fla. 2d DCA 2012) (table decision).

As in Sarasota County, in the instant case the parties continued to bargain after the declaration of an impasse, and they reached a tentative agreement prior to the legislative body hearing. And as in Sarasota County, here the union membership thereafter rejected the tentative agreement. In both cases the respective legislative bodies then purported to resolve the disputed issues, the union locals declined to submit the resulting agreements for ratification by their members, and the rulings of the legislative bodies then were imposed by the employers. Yet, whereas PERC disapproved this outcome in Sarasota County, in this case the Commission endorsed it.

Generally we are obliged to give deference to an agency’s interpretation of a statute it is charged with implementing. But we need not do so when the agency erroneously interprets the statute or when it “suddenly change[s] its interpretation ... with little or no explanation.” See Commc’ns Workers of Am. v. City of Gainesville, 65 So.3d 1070, 1076 (Fla. 1st DCA 2011) (and cases cited therein); Manatee Educ. Ass’n, Local 3821 v. Sch. Bd. of Manatee Cnty., 62 So.3d 1176 (Fla. 1st DCA 2011).

Here, PERC did not expressly recede from its holding in Sarasota County that a legislative body is not authorized to resolve disputed issues when the parties have reached a tentative agreement following a declaration of impasse. Rather, the Commission attempted to explain away its Sarasota County precedent because in that case the parties could not agree on the terms of the proposed agreement after the legislative body improperly acted to resolve the outstanding issues.

The County Administrator thought the contract included the seventy-one items tentatively agreed-to by the parties and the items imposed by the legislative body. The Union thought the County knew that the earlier tentative agreements “were all or nothing packages.” Thus, the contract would be the status quo plus the items resolved by the legislative body. Because the negotiators could not agree on the items which were undisputed, the remedy was to return the parties to the bargaining table to resolve the confusion between them. This allowed them to identify the items in dispute, which would be subject to the impasse resolution process.
There is no such confusion here. Local 1593 and the Transit Authority had identified the seventy-one items to which they tentatively agreed and the six items at impasse. The parties availed themselves to the special magistrate process and they knew the three recommendations by the special magistrate which had been accepted as well as the three rejected recommendations. After comparing the facts found in Sarasota County with the facts found by the hearing officer here, we agree with the Transit Authority that Sarasota County is not controlling because the facts differ significantly. Therefore, the Transit Authority’s sixth exception is granted.

(Footnote omitted.)

PERC’s asserted basis for declining to follow Sarasota County in this case is unavailing. For one thing, the above-quoted description of the parties’ so-called “confusion” in Sarasota County appeared nowhere in PERC’s written final order in that case. Contrary to PERC’s representation here, the parties’ disagreement about the contents, of the proposed tentative agreement following the legislative body hearing played no part in the reasoning underlying the Sarasota County decision. Thus, the relative lack of “confusion” in this case was no basis for distinguishing it from Sarasota County.

Second, PERC’s mischaracterization of the Sarasota County decision is simply fallacious. Having determined in that case that the legislative body proceeding was “void from the outset” because the parties had reached a tentative agreement and thus were no longer at impasse, it defies logic to now maintain that the decision turned on the fact that after the void legislative body hearing the parties disagreed about the terms of the agreement that stemmed from it.

Finally, as suggested by this court’s affirmance of it, PERC’s Sarasota County decision was legally sound. In that case the Commission was correct to construe the impasse statute narrowly— not only because it embodies an exception to the collective bargaining rights recognized in Chapter 447, but also because it implicates public employees’ rights to collectively bargain as set forth in the Florida Constitution. “[SJtatutes implicating constitutional rights must be ‘narrowly limited in their application according to the statutory language.’” B.C. v. Fla. Dep’t of Children & Families, 887 So.2d 1046, 1052 (Fla.2004) (quoting State v. Jackson, 650 So.2d 24, 26-27 (Fla.1995)).

Article I, section 6 of the constitution states:

The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.

In Dade County Classroom Teachers’ Ass’n v. Ryan, 225 So.2d 903 (Fla.1969), the supreme court recognized that this provision endows public employees with the same constitutional rights to bargain collectively as private employees possess, excluding the right to strike. These rights are “no longer open to debate” and “may be enforced by the courts, if not protected by other agencies of government.” Dade Cnty. Classroom Teachers Ass’n v. Legislature, 269 So.2d 684, 687 (Fla.1972). Indeed, as part of the constitution’s bill of rights, the right to collectively bargain is considered to be fundamental. Hillsborough Cnty. Gov’tal Emps. Ass’n v. Hillsborough Cnty. Aviation Auth., 522 So.2d 358 (Fla.1988). Therefore, it may be abridged only when a compelling state interest is shown, a strict-scrutiny standard that is difficult to meet and that requires a showing that the statutory regulation employs the least intrusive means necessary to accomplish the legislative goal. Id. at 362.

PERC grounded its ruling in this case on City of Hollywood v. Hollywood Municipal Employees AFSCME Local 2432, 468 So.2d 1036 (Fla. 1st DCA 1985). See 39 F.P.E.R. 175. That decision interpreted section 447.403(4)(e), which addresses the steps to be taken “[fjollowing the resolution of the disputed impasse issues by the legislative body.” The City of Hollywood court remarked that “[s]ection 447.403(4)(e), Florida Statutes, was designed to bring collective bargaining to an end at a point certain.” 468 So.2d at 1040.

The Commission seized upon the latter statement in City of Hollywood as furnishing a policy basis for its decision in this case. PERC declared that requiring HART to resume negotiations with the Union “would frustrate and undermine the legislative intent through a potentially never ending cycle of negotiations leading to impasse, another special magistrate hearing, scheduling of the legislative body hearing, post-impasse acceptance by the negotiators, rejection by the bargaining unit employees, and a return to bargaining.” 39 F.P.E.R. 175. But, as mentioned, City of Hollywood addressed the procedure to be followed after impasse issues are resolved by the legislative body. It did not involve the material circumstance present in this case and in Sarasota County, i.e., a legislative body proceeding that was not authorized by law because the parties were no longer at impasse. As PERC determined in Sarasota County, under the terms of the impasse statute such proceedings were void from the outset, and pursuant to section 447.309(4) the parties were required to resume negotiations after the tentative agreement was rejected by the union membership rather than proceed to a legislative body hearing.

Even when an agency is pursuing the policy objectives underlying the statutory scheme it is charged with enforcing, the agency may not disregard or expand upon the terms of the statutes themselves. Cf. State, Dep’t of Ins. v. Ins. Servs. Office, 434 So.2d 908, 910 (Fla. 1st DCA 1983) (noting that an agency’s rule may not “extend, modify, or conflict” with state law). This is especially so where, as here, the statutes implicate constitutional rights and therefore must be narrowly applied. PERC’s asserted policy concerns in no way undermined the legal efficacy of its construction of the impasse statute in Sarasota County. That construction was correct, and PERC erred by rejecting the hearing officer’s reliance on it in this case.

Accordingly, PERC’s order granting HART’s exceptions to the hearing officer’s recommended order is reversed. On remand, the Commission shall approve the hearing officer’s recommended order and shall impose remedies consistent with those it effected in Sarasota County.

Reversed and remanded with instructions.

DAVIS, C.J., and SILBERMAN, J., Concur.

      . The Union has raised two other issues on appeal. We will not discuss those points because our resolution of the main issue moots them.

      . The legislative body in this case is the board of directors of HART. See § 447.203(10).


author: SILBERMAN, Judge.

text:
    Eliseo Gonzales SALDANA, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5972.
    District Court of Appeal of Florida, Second District.
    April 9, 2014.
    Rehearing Denied June 2, 2014.

      Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Elíseo Gonzales Saldana seeks review of his judgment and sentences for attempted second-degree murder and shooting at, within, or into a building. Saldana challenges the jury instruction on attempted manslaughter by act, the admission of collateral crime evidence, and the imposition of consecutive sentences. We affirm Sal-dana’s convictions but write to address his challenge to the jury instruction on attempted manslaughter by act. We reverse Saldana’s consecutive sentences because, as the State concedes, they are illegal under Hale v. State, 630 So.2d 521 (Fla.1993).

Saldana was originally charged with attempted first-degree murder while discharging a firearm (count one), robbery (count two), armed burglary of a dwelling (count three), and shooting at, within, or into a building (count four). The trial court granted a motion for judgment of acquittal on count three. And the jury found Saldana guilty of the lesser-included offense of attempted second-degree murder on count one, not guilty on count two, and guilty as charged on count four. The court ultimately sentenced Saldana on count one to fifty years as a habitual felony offender (HFO) with thirty of those years as a prison releasee reoffender and a mandatory minimum of twenty-five years. On count four, the court imposed a consecutive fifteen-year sentence with no enhancements.

The first issue we address is Sal-dana’s challenge to the jury instruction on attempted manslaughter by act as a lesser-included offense.. The trial court gave the standard jury instruction that the supreme court has held is erroneous because it requires an intent to kill. See Williams v. State, 123 So.3d 23, 27 (Fla.2013). Because defense counsel neither requested nor objected to this instruction, it must be reviewed for fundamental error. See id. at 27-28. In order to constitute fundamental error, the erroneous instruction must (1) pertain to a crime no more than one step removed from the offense for which the defendant is convicted and (2) concern “an element of the crime that is in dispute and ‘is pertinent or material to what the jury must consider’ to convict.” Id. at 29.

In this case, the instruction pertained to attempted manslaughter by act, which is one-step removed from the crime of attempted second-degree murder. However, the element of intent was not in dispute or pertinent to what the jury had to consider to convict because Saldana’s sole defense was self-defense. See Richards v. State, 128 So.3d 959, 963 (Fla. 2d DCA 2013). That is, Saldana did not dispute that he intended to shoot the victim; he argued that he was justified in doing so. Thus, the only disputed issue for the jury to consider was whether Saldana’s use of force was justified as self-defense. Accordingly, the erroneous attempted manslaughter by act instruction did not constitute fundamental error. See id.

The second issue we address is Sal-dana’s challenge to the imposition of consecutive sentences. Saldana argues, and the State concedes, that the consecutive sentences imposed in this case are illegal under Hale v. State, 630 So.2d 521 (Fla.1993). Under Hale, consecutive HFO and non-HFO sentences are illegal if the underlying offenses arose from the same episode. Williams v. State, 124 So.3d 286, 288-89 (Fla. 2d DCA 2013); Swanson v. State, 98 So.3d 194, 195 (Fla. 2d DCA 2012). But see Cotto v. State, 89 So.3d 1025, 1030 (Fla. 3d DCA 2012) (“[W]e read Hale to forbid only the imposition of two or more consecutive sentences that have themselves been enhanced and which arise from the same criminal episode.”); Mills v. State, 23 So.3d 186, 188 (Fla. 1st DCA 2009) (“[Cjonseeutive HFO and non-HFO sentences imposed for crimes committed during a single criminal episode are legal if the aggregate sentence is less than that which could have been imposed if all HFO eligible convictions had been enhanced and ordered to run concurrently.”).

In this case, the charges of attempted murder and shooting at, within, or into a building arose from the same criminal episode. Thus, the consecutive non-HFO and HFO sentences for these crimes are illegal under Hale. See Williams, 124 So.3d at 288-89; Swanson, 98 So.3d at 195. Accordingly, we reverse Saldana’s sentences and remand with directions for the court to impose concurrent sentences. See Williams, 124 So.3d at 289 (holding that the postconviction court should reconsider the Hale claim and, if granted, adjust the HFO and non-HFO sentences to run concurrently); see also Swanson, 98 So.3d at 195 (reversing the denial of postconviction relief and remanding with directions for the postconviction court to adjust the defendant’s HFO sentences to run concurrently); Wicker v. State, 655 So.2d 1240, 1242 (Fla. 2d DCA 1995) (reversing consecutive HFO sentences on direct appeal pursuant to Hale and ordering the trial court to impose concurrent HFO sentences on remand).

Convictions affirmed; sentences reversed and remanded with directions.

WALLACE and MORRIS, JJ., Concur.

      . This instruction has recently been amended to comport with Williams. See In re Standard Jury Instructions in Criminal Cases-Instruction 6.6, 132 So.3d 1124 (Fla.2014).


author: KELLY, Judge.

text:
    326-330 ST. ARMANDS CIRCLE, LLC, Appellant, v. GEE22, LLC, and Peter Geannopulos, Appellees.
    No. 2D12-2395.
    District Court of Appeal of Florida, Second District.
    April 16, 2014.
    Rehearing Denied June 20, 2014.

      Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant.
    Joseph F. Summonte, Jr., of Law Office of Joseph F. Summonte, Jr., P.A., Venice, for Appellees.
   KELLY, Judge.

Appellant, 326-380 St. Armands Circle, LLC (St. Armands), challenges the amended final judgment that found it had breached its commercial lease with Appellees, GEE22, LLC, and Peter Geannopulos (collectively GEE22), for restaurant space by failing to timely have the property ready for occupation by a date certain. It also challenges the trial court’s dismissal with prejudice of its counterclaims alleging that GEE22 breached the lease by abandoning the premises and failing to pay rent. We reverse.

GEE22 sought to lease space from St. Armands to open a restaurant. When GEE22 entered into the lease on August 23, 2007, St. Armands was in the process of gutting and remodeling the premises, including installing an elevator. To install the elevator, St. Armands was required to draw up architectural plans, obtain permits, demolish portions of the building, order the elevator, and upgrade the electrical system. The elevator had to be completed before GEE22 could obtain a restaurant liquor license. Section 23.27(a)(2) of the lease provided that time was of the essence with respect to the performance of the respective obligations of the landlord and the tenant; however, no date for the completion of the renovations to the building was specified in the lease. The trial court found that St. Ar-mands breached the “time is of the essence” clause when it failed to have the building ready by February 6, 2008, less than six months after the lease was signed.

In this appeal, GEE22 argues the trial court was right to find that St. Ar-mands breached the lease, although it does not defend the trial court’s determination that the “time is of the essence clause” was breached. It urges us to affirm the trial court under the “tipsy coachman doctrine.” See Robertson v. State, 829 So.2d 901, 906 (Fla.2002) (“[T]he ‘tipsy coachman’ doctrine[ ] allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’ ” (quoting Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999))). Specifically, GEE22 argues that although the lease contained no date for the completion of St. Armands’ work, the circumstances surrounding the execution of the lease led GEE22 to expect that the renovations would be completed by November 15, 2007. It contends that St. Armands’ failure to fulfill that expectation was a breach of the lease.

In order for a court to consider the intention of the parties outside of the written contract, there must be some ambiguity in the contract. Without a finding of ambiguity, a court is not at liberty to consider extrinsic evidence of intent. Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1002 (Fla. 2d DCA 1995) (“[B]efore a trial court can consider such extrinsic evidence in interpreting a contract, the words used must be unclear such that an ambiguity exists on the face of the contract.”). GEE22 points to no ambiguity in the language of the lease which would require the court to find an implied term, i.e., a specific date of completion. To the contrary, several provisions in the lease belie the fact that the completed construction was promised on a date certain. For example, section 23.27(a)(2) states: “Provided LANDLORD is able to obtain all necessary permits, LANDLORD shall install an elevator which is accessible from the Downstairs Space and the common area outside the Downstairs Space and is accessible from the Upstairs Space.” No dates regarding the permitting or installation of the elevator were specified in the lease. Rather, the lease granted St. Armands some leeway in installing the elevator as long as it “worked diligently” toward that goal. Specifically, section 23.27(b) states that “the installation of the elevator must be completed before, and is necessary for TENANT to obtain a 4COP SRX Restaurant liquor license. Therefore, LANDLORD agrees to work diligently to complete the installation of the elevator so as not to delay TENANT’S ability to apply for and obtain such liquor license.”

Accordingly, because the record does not support a finding that St. Armands breached the lease, we reverse the judgment in favor of GEE22 and remand for reconsideration of St. Armands’ counterclaims.

Reversed and remanded for further consideration.

MORRIS and SLEET, JJ., Concur.


author: FERNANDEZ, J.

text:
    Walter M. RUSNIACZEK, Appellant, v. TABLEAU FINE ART GROUP, INC., Appellee.
    No. 3D12-224.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.

      Darius Asly, for appellant.

      Stok Folk + Kon, and Robert A. Stock, for appellee.
    Before ROTHENBERG, SALTER and FERNANDEZ, JJ.
   FERNANDEZ, J.

Walter M. Rusniaczek appeals the trial court’s order granting summary judgment in favor of Tableau Fine Art Group, Inc. as to liability. We affirm in part, reverse in part, and remand the case for an evidentia-ry hearing pursuant to Florida Rule of Civil Procedure 1.540(b). We further conclude that the damages ordered in the final monetary judgment are unliquidated.

Tableau sued Rusniaczek under a breach of contract claim. The claim was based on Rusniaczek’s failure to follow through with a deal that involved the sale of a painting. The contract designated Tableau as Rusni-aczek’s broker for the purpose of the sale. The contract also contained a liquidated damages provision of fifty percent of the minimum sales price of $5,000,000 if Rusni-aczek breached.

Tableau moved for partial summary judgment on liability. Rusniaczek responded that the documents Tableau used to support its motion were fraudulent. Rusniaczek filed two affidavits in support of his response. The first affidavit was from Rusniaczek, where he swore that he did not sign the consignment agreements between the parties. The second affidavit was from Olga Tepper, the notary that allegedly stamped the consignments, who swore that she did not notarize any of the consignments, and that an unknown person stole her notary stamp prior to the signing of the consignments. The trial court granted Tableau’s partial summary judgment on liability without an evidentia-ry hearing on the fraud issue.

The trial court further awarded Tableau $3,148,961.37 in damages based on an affidavit from Tableau’s principal, Tod Tar-rant, and the contract’s liquidated damages provision. Tableau claimed that it paid approximately $200,000 for expenses related to the marketing and exhibition of the painting in Rome, Italy. Furthermore, Tableau claimed damages related to a bona fide offer to purchase the painting from an unknown Ukrainian company named I.M.T. Consulting, Inc. for $5,500,000. Rusniaczek argued that I.M.T. Consulting, Inc. was a fictitious company because it was not registered in the Ukrainian government’s registry of corporate entities.

In the course of various other proceedings, the trial court denied all of Rusniac-zek’s motions and granted final summary judgment for Tableau. Several months after the final judgment, Rusniaczek filed several motions to disqualify the trial court judge. The trial court denied all of the motions to disqualify. Rusniaczek appeals the final summary judgment order entered in favor of Tableau.

We first hold that Rusniaczek is entitled to an evidentiary hearing on the issue of fraud. “If the allegations in the moving party’s motion for relief from judgment ‘raise a colorable entitlement to rule 1.540(b)(3)’s relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing, is required.’ ” Dynasty Express Corp. v. Weiss, 675 So.2d 235, 239 (Fla. 4th DCA 1996). In order to warrant an evidentiary hearing, a rule 1.540(b)(3) motion must specify the essential facts of the purported fraud and not merely assert legal conclusions. Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994). The purpose of this specificity requirement is to permit the court “to determine whether the movant has made a prima facie showing which would justify relief from judgment,” and is not merely rehashing matters explored at trial. Id.

Rusniaczek alleged a colorable claim of fraud, which was supported by several articles of competent evidence. Tepper’s affidavit raises questions regarding the validity and truthfulness of Tableau’s claim for relief. Thus, the trial court should have held an evidentiary hearing to determine whether Rusniaczek could produce clear and convincing evidence of fraud. See Hernandez v. City of Miami, 35 So.3d 942, 943 (Fla. 3d DCA 2010) (stating that the party seeking relief must prove a fraud on the court claim by clear and convincing evidence at the evidentiary hearing).

We further hold that the liquidated damages provision of the parties’ contract cannot be upheld. Florida law dictates that parties to a contract may stipulate in advance to an amount to be paid or retained as liquidated damages in the event of a breach. Lefemine v. Baron, 573 So.2d 326, 328 (Fla.1991). The Florida Supreme Court established a two-prong test to determine whether a liquidated damages provision will be upheld or stricken as a penalty clause. See Hyman v. Cohen, 73 So.2d 393 (Fla.1954). First, the damages consequent upon a breach must not be readily ascertainable. Lefemine, 573 So.2d at 328. Second, the sum stipulated to be forfeited must not be so grossly disproportionate to any damages that might reasonably be expected to follow from a breach as to show that the parties could have intended only to induce full performance, rather than to liquidate their damages. Id.

The subject liquidated damages provision in the contract between the parties constitutes a penalty clause. The provision fails the second prong of the test in that the damages are grossly disproportionate to any damages that Rusniaczek could reasonably have expected to follow from his breach. This clause showed that Tableau intended only to induce full performance, rather than to liquidate its damages.

We thus conclude that Rusniaczek alleged a colorable claim of fraud pursuant to Florida Rule of Civil Procedure 1.540(b)(3) and that the liquidated damages provision in the parties’ contract constitutes a penalty clause that cannot be upheld. We therefore reverse on these issues and remand the cause to the trial court for an evidentiary hearing on the issue of fraud. The summary judgment on liability is affirmed in all other respects and we decline to address the remaining issues raised in this appeal as meritless.

Affirmed in part, reversed in part, and remanded with instructions.


text:
    Johnnie B. JOHNSON, Sr., Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D14-1425.
    District Court of Appeal of Florida, First District.
    April 16, 2014.
    Rehearing Denied June 10, 2014.
    Johnnie B. Johnson, Sr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, CLARK, and SWANSON, JJ., concur.


text:
    Vinson Tremayne SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1435.
    District Court of Appeal of Florida, First District.
    April 16, 2014.
    Rehearing Denied May 29, 2014.
    Vinson Tremayne Sanders, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, CLARK, and SWANSON, JJ., concur.