Eric Selman v. State ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ERIC SELMAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-632
[March 18, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Matthew I. Destry, Judge; L.T. Case No. 10-21595
CF10A.
Carey Haughwout, Public Defender, and Jonathan Dodson, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.
CIKLIN, J.
Eric Selman appeals an order finding that he violated his probation by
committing trespass after warning, sentencing him to time served, and
reinstating the original terms and conditions of his probation. He argues
the trial court denied his due process rights by refusing to allow defense
counsel to present a closing argument at the final hearing on his
violation of probation. We agree and reverse.
After the defense rested—but before being afforded an opportunity to
offer a closing argument—the trial court began to announce its ruling.
Defense counsel attempted to interject, stating, “Your Honor, if I may.”
The trial court continued speaking without acknowledging her request,
so defense counsel again interrupted:
DEFENSE COUNSEL: If I may make a record, Your Honor.
THE COURT: No. At this point I’m proceeding. I don’t
need argument.
Several more times, counsel attempted to present arguments pertaining
to the insufficiency of hearsay testimony and an affirmative defense of a
tenancy (related to the trespass charge), and each time the trial court
promptly dismissed the issue raised.
A defendant’s due process rights include the right to present a closing
argument at a violation of probation hearing, just as in a jury or non-jury
trial. See Estevez v. State, 705 So. 2d 972, 973 (Fla. 3d DCA 1998); see
also Bleiweiss v. State, 24 So. 3d 1215, 1216 (Fla. 4th DCA 2009) (“[T]he
failure to allow argument of counsel . . . amounted to a basic denial of
petitioner’s right to be heard at an adversarial judicial proceeding that
could deprive him of his liberty—the most fundamental of all due process
rights.”). The failure to afford a defendant a closing argument in such an
adversarial proceeding is reversible error. See Pearson v. State, 51 So. 3d
1286 (Fla. 4th DCA 2011). Although the parties may consent or
otherwise be directed to present their closing arguments in writing, a
defendant still must be given the opportunity to present closing
argument in some form. See J.M.S. v. State, 921 So. 2d 813, 815 (Fla.
5th DCA 2006); M.E.F. v. State, 595 So. 2d 86, 87 (Fla. 2d DCA 1992).
And of course, closing argument may be waived. See, e.g., Menard v.
State, 427 So. 2d 399, 400 (Fla. 4th DCA 1983). No such waiver
occurred here and instead, the trial court proceeded to announce its
ruling despite defense counsel’s repeated attempts to offer argument.
We must reject the state’s argument that the defendant’s due process
rights were not violated because defense counsel was able to partially
argue her closing points and therefore no harm occurred. The state
asserts that defense counsel raised hearsay objections during witness
testimony and briefly mentioned hearsay and the affirmative defense
before the court ruled.
This is not enough. In a similar case in which a defendant was denied
the opportunity to present a closing argument, the First District Court of
Appeal reversed the order revoking his probation and shed light on why
such reasoning is erroneous:
Appellant was entitled to an opportunity to be heard on the issue
of whether he violated his probation. See Pearson v. State, 51 So.
3d 1286, 1286 (Fla. 4th DCA 2011); Estevez v. State, 705 So. 2d
972, 973 (Fla. 3d DCA 1998) (citing Black v. Romano, 471 U.S.
606, 611, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985)). This
opportunity includes the right to a closing argument. Pearson, 51
So. 3d at 1286; Estevez, 705 So. 2d at 973. Because we do not
know how a closing argument might have affected the judge’s
perception of the evidence, we decline the State’s invitation to
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deem the denial of closing argument harmless. Cf. Herring v. New
York, 422 U.S. 853, 862–64, 95 S. Ct. 2550, 45 L. Ed. 2d 593(1975) (noting that a closing argument may correct misperceptions
in what would otherwise appear to be an “open and shut” bench
trial and that there is no way for a judge to know if a closing
argument will have such an effect without allowing the argument
to proceed).
Fain v. State, 134 So. 3d 1039, 1040 (Fla. 1st DCA 2013). Here, the
defense attorney clearly was seeking the opportunity to offer a closing
argument on behalf of her client. Counsel’s lack of specific words such
as, “May I present closing argument?” was not necessary under the facts
of this case and certainly does not negate or otherwise mitigate the
violation of the defendant’s due process rights that occurred here.
We also must reject the state’s argument that any error is likewise
harmless because the court merely reinstated the terms of the
defendant’s probation and sentenced him to time served. In that the
violation of probation could work against the defendant’s interests on
sentencing scoresheets in future criminal proceedings, the state’s
analysis is not well-founded.
Accordingly, we reverse and remand for a new hearing on the violation
of probation, and we direct that the case be assigned to a different trial
judge.
Reversed and remanded with instructions.
WARNER and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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