James Ron SHELLEY, Public Defender, First Judicial Circuit of Florida, Petitioner, v. The DISTRICT COURT OF APPEAL, First District of Florida, Respondent, 350 So. 2d 471

OVERTON, Chief Justice. James Ron Shelley, Public Defender for the First Judicial Circuit of Florida, petitions for writ of common law certiorari to review an order of the First District Court of Appeal, finding him in contempt for failure to prosecute an appeal and failure to respond to an inquiry of the court. This action initially began in the District Court of Appeal, and there has been no previous appellate review. The assertion is also made that there is conflict with In re McCarey, 105 So.2d 813 (Fla. 1st DCA 1958).

McCarey held that a lawyer’s abandonment of an appeal of his client was “not truly a contempt of the appellate court,” but that the facts in that case justified a disciplinary prosecution for disbarment. 105 So.2d at 815. We find decisional conflict, even though the McCar-ey case did not involve a failure to respond to a letter inquiry and directive of a court. We have jurisdiction.

The instant case began on February 6, 1974, when a notice of appeal from a conviction of breaking and entering was filed by George Ralph Miller, an assistant public defender and member of the staff of the petitioner, on behalf of Clyde Young, a client of petitioner. Nothing further was done to prosecute the appeal. The defendant Young was placed on probation in June of 1974. On September 20, 1974, the clerk of the First District Court of Appeal, at the direction of the chief judge, wrote petitioner Shelley directing him to advise the court within seven days why the appeal had not been prosecuted.

No response was made by petitioner. On October 17, 1974, the First District Court of Appeal ordered the petitioner Shelley to appear before the court and show cause why he should not be held in contempt for failure to prosecute and failure to respond to a directive of the court. Since Shelley had neither responded nor appeared at that point, it was necessary for the court to have the sheriff serve the Order to Show Cause on the petitioner.

The order directed petitioner to show “why [he] should not be held in contempt of this Court for [his] dereliction for failure to prosecute this appeal in accordance with Florida Appellate Rules.” Petitioner at the hearing on November 5, 1974, did not deny he received the court’s letter, but urged that it was his assistant who failed to respond to the circumstances of the appeal.

He nevertheless admitted: “I am personally responsible for whatever he did because he cannot act except by my authority.” The District Court found that he failed to prosecute the appeal of his client and failed to respond properly to the court’s directive, and fined him one hundred fifty dollars ($150.00) and costs.

Although no express mention was made of “contempt” in the order, contempt appears to be the foundation for the sanctions imposed since the last sentence of the order read: “Payment of said fine and court costs within 30 days from the date of this Order shall constitute purge of this Order.” We hold that the imposition of a

summary contempt sanction is a proper and necessary disciplinary tool to aid a judicial tribunal in carrying out its necessary court functions, but the imposition of the sanction in this case was not warranted under the facts presented in the record. The contempt power is a proper and historical alternative to existing formal disciplinary proceedings. The Integration Rule of The Florida Bar,

Article XI, Rule 11.14, providing for disciplinary proceedings in circuit courts, is no bar to the use of this

summary power in cases of lesser infractions of the various rules governing the practice of law which affect the necessary operations of a court. Such authority historically is within the inherent power of courts, and the District Courts of Appeal clearly have the inherent authority to impose such sanctions. Flaksa v. Little River Marine Construction Co., Inc., 389 F.2d 885, 888-89 (5th Cir. 1968), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968). See In re Sutter, 543 F.2d 1030, 1037-38 (2d Cir. 1976); Bardin v. Mondon, 298 F.2d 235 (2d Cir. 1961). Contra, see Gamble v.

Pope & Talbot, Inc., 307 F.2d 729 (3rd Cir. 1962), cert. denied, 371 U.S. 888, 83 S.Ct. 187, 9 L.Ed.2d 123 (1962). We find the sanction imposed by the District Court improper because there was a lack of personal knowledge by the petitioner of the grounds for contempt. This is a substantial mitigating circumstance in this case. Further there is no finding that the petitioner personally disobeyed a court order. Accordingly, the order of the District Court of Appeal is quashed. ADKINS, BOYD, SUNDBERG, HATCH-ETT and KARL, JJ., concur. ENGLAND, J., concurs with an opinion. . Art. V, § 3(b)(3), Fla.Const. .

For a critical discussion of this subject, see Wolf, Attorney’s Negligent Failure to Comply with Procedural Deadlines and Court Calendar Orders — Sanctions, 47 Texas L.Rev. 1198 (1969): Note, Dismissal for Failure to Attend a Pretrial Conference and Use of Sanctions at Preparatory Stages of Litigation, 72 Yale L.J. 819, 829-32 (1963); Note, Civil Procedure— Power of Federal Courts to Discipline Attorneys for Delay in Pretrial Procedure, 38 Notre Dame Lawyer 158, 161-66 (1963).