IN RE CONTEMPT OF DAVID KUTEK
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
In re Contempt of DAVID KUTEK.
UNPUBLISHED
_________________________________________
August 9, 1996
CLARENCE KING,
Plaintiff–Appellee,
v
No. 178167
LC No. 00159635
DAVID KUTEK,
Defendant–Appellant,
and
REDFORD POLICE DEPARTMENT,
Defendant.
Before: Wahls, P.J., and Murphy and C.D. Corwin,* JJ.
PER CURIAM.
Defendant appeals by right his bench trial conviction of contempt of court for failing to comply
with a writ of habeas corpus. We reverse.
Defendant first contends that the trial court lacked authority to issue the writ and that the writ
did not comply with the court rules. This argument is without merit. The trial court had authority to
issue the writ pursuant to MCL 600.4304; MSA 27A.4304. The form of the writ substantially
complied with the court rule, MCR 3.303, and no formal complaint was required. MCR
3.303(F)(1)(a).
* Circuit judge, sitting on the Court of Appeals by assignment.
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Defendant next argues that the evidence was insufficient to convict him of contempt of court.
To sustain a conviction of criminal contempt, the prosecution must prove two elements: that the
individual willfully disobeyed or disregarded a court order, and that the contempt shown is unequivocal
and clear. In re Contempt of O’Neil, 154 Mich App 245, 247; 397 NW2d 191 (1986).
The evidence at the bench trial showed that defendant contacted the prosecutor’s office,
advised a prosecutor that plaintiff was in his custody, that he had been served with a writ of habeas
corpus from Recorder’s Court and that federal agents were at the police department seeking custody of
plaintiff. Defendant asked the prosecutor’s advice, and was told to turn plaintiff over to the federal
agents. The prosecutor also told defendant that the prosecutor assigned to the issuing court had been
advised, so defendant did not think it was necessary to contact the court directly. This Court has
recognized that when an individual relies, in good faith, upon his attorney’s advice, he cannot be guilty of
criminal contempt because the element of intentional violation of a court order has not been satisfied. In
re Contempt of Rapanos, 143 Mich App 483, 495; 372 NW2d 598 (1985). We conclude that the
evidence was insufficient to convict defendant of criminal contempt beyond a reasonable doubt.
Because we hold that the evidence was insufficient to convict defendant, we need not address
the other issues which defendant has raised.
Reversed.
/s/ Myron H. Wahls
/s/ William B. Murphy
/s/ Charles D. Corwin
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