January 1, 2017 Florida Rules of Criminal Procedure 287
The Florida Bar
(4) Arraignment; Hearing. Provision is made for a pre-hearing arraignment in case
the defendant wishes to plead guilty to the charge prior to the date set for the hearing. The
defendant has a constitutional right to a hearing under the due process clauses of the state and
federal constitutions. State ex rel. Pipia v. Buchanan, 168 So.2d 783 (Fla. 3d DCA 1964). This
right includes the right to assistance of counsel and the right to call witnesses. Baumgartner v.
Joughin, supra. The defendant cannot be compelled to testify against himself. Demetree v. State,
ex rel. Marsh, 89 So.2d 498 (Fla. 1956).
Section 38.22, Florida Statutes, as amended in 1945, provides that all issues of law or fact
shall be heard and determined by the judge. Apparently under this statute the defendant is not
only precluded from considering a jury trial as a right but also the judge has no discretion to
allow the defendant a jury trial. See State ex rel. Huie v. Lewis, supra, and Dodd v. State, supra,
in which the court seems to assume this, such assumption seemingly being warranted by the
terminology of the statute.
There is no reason to believe that the statute is unconstitutional as being in violation of
section 11 of the Declaration of Rights of the Florida Constitution which provides, in part, that
the accused in all criminal prosecutions shall have the right to a public trial by an impartial jury.
Criminal contempt is not a crime; consequently, no criminal prosecution is involved. Neering v.
State, 155 So.2d 874 (Fla. 1963); State ex rel. Saunders v. Boyer, 166 So.2d 694 (Fla. 2d DCA
1964); Ballengee v. State, 144 So.2d 68 (Fla. 2d DCA 1962).
Section 3 of the Declaration of Rights, providing that the right of trial by jury shall be
secured to all and remain inviolate forever, also apparently is not violated. This provision has
been construed many times as guaranteeing a jury trial in proceedings at common law, as
practiced at the time of the adoption of the constitution (see, e.g., Hawkins v. Rellim Inv. Co., 92
Fla. 784, 110 So. 350 (1926)), i.e., it is applicable only to cases in which the right existed before
the adoption of the constitution (see, e.g., State ex rel. Sellers v. Parker, 87 Fla. 181, 100 So. 260
(1924)). Section 3 was never intended to extend the right of a trial by jury beyond this point.
Boyd v. Dade County, 123 So.2d 323 (Fla. 1960).
There is some authority that trial by jury in indirect criminal contempt existed in the early
common law, but this practice was eliminated by the Star Chamber with the result that for
centuries the common law courts have punished indirect contempts without a jury trial. See 36
Mississippi Law Journal 106. The practice in Florida to date apparently has been consistent with
this position. No case has been found in this state in which a person was tried by a jury for
criminal contempt. See Justice Terrell’s comment adverse to such jury trials in State ex rel. Huie
v. Lewis, supra.
The United States Supreme Court has assumed the same position with reference to the
dictates of the common law. Quoting from Eilenbecker v. District Court, 134 U.S. 31, 36, 10