Opinion
No. 85-320.
March 5, 1985.
John Lipinski, Miami, for petitioner.
Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for respondent.
Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
Where, as here, there is neither an affirmative finding nor evidence in the record that the petitioner, at the time of his incarceration for civil contempt, had the ability to pay the amount ordered and thus obtain his release from incarceration, the incarceration, the aim of which is to coerce future compliance with the court's order, is unlawful, see Bowen v. Bowen, 454 So.2d 565 (Fla. 2d DCA 1984); Ponder v. Ponder, 438 So.2d 541 (Fla. 1st DCA 1983), rev. denied, 447 So.2d 887 (Fla. 1984), and the petition for writ of habeas corpus must be granted. This ruling is without prejudice to the commencement of any appropriate criminal contempt proceeding to punish the petitioner for his willful violation of the court order which occurred well before the petitioner's incarceration.
Petition for writ of habeas corpus granted.