D.M., Sr., Father of C.M. and D.L.M., Children, Petitioner, v. GLOVER (1998)

D.M., Sr., petitions this court for a writ of habeas corpus, contending that his incarceration for contempt is illegal.   Previously his child was found delinquent and the parent and child were held jointly and severally liable for attorney's fees, crimes compensation costs, and restitution to a victim.   Later, after a hearing, D.M. was found to be in contempt for failure to pay those amounts and was directed to serve consecutive 90-day jail terms with purge amounts equal to the costs previously imposed plus costs of the new proceedings.

We agree with respondent that the proceedings below were civil contempt, not criminal, and therefore the petitioner was not entitled to the procedural safeguards of rule 3.840.   The respondent correctly concedes, however, that the orders of incarceration are deficient in that the trial court made no finding of present ability to pay the purge amount.   Accordingly, the petition for writ of habeas corpus is granted and respondent Glover is directed to immediately deliver petitioner to a judge of the Fourth Judicial Circuit, Duval County, for a hearing on petitioner's ability to pay the purge amount or to set a time for such hearing and for further proceedings as appropriate in light of the findings of that hearing.   Petitioner is entitled to release until a finding is made on his present ability to pay the purge amounts.

PETITION GRANTED;  WRIT ISSUED.

PER CURIAM.

BARFIELD, C.J., and MINER and KAHN, JJ., concur.