Don't Drink and Jury

Michael Maida

On October 7, the Florida Supreme Court heard arguments in Plank v. State (SC14-414), on appeal from the First District Court of Appeal, 130 So. 3d 289 (Fla. 1st DCA 2014), which certified conflict with Woods v. State, 987 So. 2d 669 (Fla. 2d DCA 2007), and Al-Hakim v. State, 53 So. 3d 1171 (Fla. 2d DCA 2011).
At circuit court, Plank was charged with direct criminal contempt, pursuant to Rule 3.830, Florida Rules of Criminal Procedure, for being drunk while appearing for jury selection. The trial court record reflects that Plank told Judge Dempsey during voire dire, in part, “I’m not even registered to vote. And I’m also, to tell you the truth, I’m a drunk.” He then slept through part of jury selection , smelled of alcohol, and ultimately failed a breathalyzer test.
Following a hearing held after the conclusion of jury selection, Plank was convicted and sentenced to thirty days in jail. He appealed his case to the First District, arguing the trial court erred by failing to appoint him counsel or give him an opportunity to seek counsel for the contempt proceeding. Plank v. State, 130 So. 3d at 290. In a brief per curiam decision, the First District affirmed prior decisions, holding the absence of counsel for Plank’s hearing violated neither the Sixth Amendment nor the Florida Rules of Criminal Procedure. Id.
The issue boils down to whether or not the trial court erred by not appointing counsel or providing petitioner with the opportunity to retain counsel. Put another way, this case invites the Florida Supreme Court to decide whether the failure of a court to assign counsel or provide the opportunity to retain counsel during a direct criminal contempt of court proceeding violates the Sixth Amendment of the United States Constitution or Florida Rules of Criminal Procedure.