DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DANNY MARK REYNOLDS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-3207
[March 24, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Timothy L. Bailey, Judge; L.T. Case No. 14-014253
CF10A.
Carey Haughwout, Public Defender, and Robert Porter, Assistant Public
Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Georgina Jimenez-
Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
The appellant defendant failed to appear at his sentencing hearing
because he was in the emergency room. The court continued with
sentencing, concluding that Florida Rule of Criminal Procedure 3.180(c)(2)
(2019) allows the court to sentence a defendant in absentia even where the
absence is involuntary. We conclude that the rule applies only to
voluntary absences, and where the defendant’s absence is involuntary,
sentencing in absentia violates the defendant’s Sixth Amendment rights.
Therefore, we reverse and remand for resentencing.
Appellant was charged with sixty-five felony counts involving
racketeering, grand theft, securities fraud, and other charges. Appellant
originally entered a plea of not guilty but changed his plea to guilty in a
plea agreement in 2016. As part of the plea agreement, appellant agreed
to cooperate in the prosecution of his co-defendants. The agreement set
forth appellant’s potential punishment exposure for his crimes. His
adjudication and sentence would be deferred until after the trials of his
co-defendants and, per the agreement, he agreed to a sentence of eight-to-
twelve years in prison followed by ten years of reporting probation with
special conditions, including restitution in the amount of $1,169,935.49
to victims.
In October 2019, sentencing proceeded. At the start of the sentencing
hearing, defense counsel advised the court that appellant had texted her
that morning at 4:00 a.m. saying that he was in the emergency room. She
relayed that she had last spoken with appellant twenty minutes prior to
the hearing, and she verified that he was at the hospital. The State agreed
that defense counsel had verified that appellant was still at the hospital
“[n]ot even an hour” ago.
The prosecutor objected to a continuation and advised the court to
sentence appellant in absentia. While defense counsel had shown the
prosecutor pictures showing the emergency room admission forms and
stated that the defendant suffers from high blood pressure, the prosecutor
argued that the timing was suspicious and “[appellant] has claimed heart
issues in the past to get out of having to do things[.]” The court interjected
the concern that defendants might report to the emergency room simply
to get out of sentencing.
After a recess, the court noted that defense counsel had spoken with a
nurse in appellant’s hospital room and conveyed that appellant was
“suffering an illness” and “he cannot be here.” Defense counsel then
argued that because appellant was involuntarily absent, the court could
not proceed. Counsel acknowledged that Florida Rule of Criminal
Procedure 3.180(c)(2), which deals with sentencing when the defendant is
absent, does not distinguish between voluntary and involuntary absences.
However, she argued that appellant had a Sixth Amendment right to be
present at a critical stage of the proceedings that could not be considered
waived by an involuntary absence. Based on the defense counsel’s
representations, the court stated, “to me that qualifies as he involuntarily
absented himself.”
Nevertheless, the court decided to move forward with sentencing. The
prosecutor agreed that appellant had cooperated and provided truthful
statements, thus complying with his plea agreement. However, the State
also noted the extent of the fraud committed and how it affected some
victims with whom the appellant ingratiated himself in order to steal from
the victims. Therefore, the prosecutor recommended a sentence of ten
years, which was in the middle of the agreed range. Defense counsel
argued that appellant’s contribution was more substantial, and the State’s
recommendation was also not reflective of the victims’ wishes, thus
seeking a lesser sentence. The court then sentenced appellant to twelve
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years in prison with credit for time served and ten years of probation. This
appeal follows.
“One of the most basic tenets of Florida law is the requirement that all
proceedings affecting life, liberty, or property must be conducted according
to due process, which includes a reasonable opportunity to be heard.”
Dunbar v. State,
89 So. 3d 901, 907 (Fla. 2012) (quoting Jackson v. State,
767 So. 2d 1156, 1159 (Fla. 2000)). “Among a criminal defendant’s most
basic constitutional rights is the right rooted in the Confrontation Clause
of the Sixth Amendment to be present at every critical stage of a criminal
proceeding.” Blair v. State,
25 So. 3d 46, 47 (Fla. 5th DCA 2009); see also
Dunbar,
89 So. 3d at 907. Sentencing is considered a critical stage of a
criminal proceeding. See Jackson v. State,
983 So. 2d 562, 575 (Fla. 2008).
Defendants may, however, waive their right to be present at a crucial
stage of a criminal proceeding, including sentencing. “[D]efendants who
voluntarily fail to attend their scheduled sentencing hearings may be
sentenced in absentia.” Capuzzo v. State,
596 So. 2d 438, 440 (Fla. 1992)
(emphasis added).
In Capuzzo, a defendant voluntarily absented himself from the
sentencing proceeding.
Id. at 439. The court sentenced him in absentia,
and the Fifth District affirmed, concluding his voluntary absence
constituted a waiver of his right to be present at sentencing.
Id. at 440.
The supreme court agreed, finding “no reason to distinguish between a
defendant’s presence at sentencing and his or her presence at other crucial
stages of the trial that occur prior to the return of the verdict.”
Id. At the
time, rule 3.180 provided for conducting a trial in absentia where the
defendant was voluntarily absent from trial. 1 It did not include absence
at sentencing.
1 Former Rule 3.180(b) provided:
(b) Defendant Absenting Himself. If the defendant is present at the
beginning of the trial and shall thereafter, during the progress of
said trial or before the verdict of the jury shall have been returned
into court, voluntarily absent himself from the presence of the court
without leave of court, or is removed from the presence of the court
because of his disruptive conduct during the trial, the trial of the
cause or the return of the verdict of the jury in the case shall not
thereby be postponed or delayed, but the trial, the submission of
said case to the jury for verdict, and the return of the verdict thereon
shall proceed in all respects as though the defendant were present
in court at all times.
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The rule was amended in 2006 2 to include rule 3.180(c)(2), the
provision for sentencing in absentia:
(2) Sentencing. If the defendant is present at the beginning of
the trial and thereafter absents himself or herself as described
in subdivision (1), or if the defendant enters a plea of guilty or
no contest and thereafter absents himself or herself from
sentencing, the sentencing may proceed in all respects as
though the defendant were present at all times.
A committee note shows that the amendment was intended to incorporate
Capuzzo’s holding in the rule:
Rule 3.180(c), Defendant Absenting Self, is amended by
adding new subdivision (2), Sentencing, which allows a court
under certain circumstances to proceed with sentencing when
a defendant absents himself or herself from the courtroom.
The Committee proposed the amendment in response to
Capuzzo v. State,
596 So. 2d 438, 439–40 (Fla. 1992)
(explaining that whereas “[r]ule 3.180 codifies the well-
established principle that defendants may voluntarily waive
their right to be present during crucial stages of the trial that
occur prior to verdict,” the rule “stops short of guidance
regarding waiver by absence after the return of the verdict”).
The present amendment addresses the issue presented by
Capuzzo.
In re Amendments to the Fla. Rules of Criminal Procedure (Three Year Cycle),
942 So. 2d 407, 408 (Fla. 2006) (first emphasis supplied). Thus, because
the amendment to the rule was intended to incorporate Capuzzo’s holding,
it applies to voluntary absences, not involuntary absences.
That the rule amendment applies to voluntary and not involuntary
absences is confirmed by the language of the rule itself. It deals with a
defendant who “absents himself or herself,” using “absent” as a verb.
Merriam-Webster Dictionary defines the verb “absent” as “to keep (oneself)
away” and gives as an example “[h]e absented himself from the meeting.”
Merriam-Webster Dictionary, https://www.merriam-webster.com/
Capuzzo v. State,
596 So. 2d 438, 439 (Fla. 1992) (quoting Fla. R. Crim P. 3.180(b)
(1992)).
2 Effective January 1, 2007.
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dictionary/absent (last visited Feb. 9, 2021). More importantly, the rule
applies when the defendant absents himself or herself “as described in
subdivision (1).” Subsection 3.180(c)(1) applies only to a defendant
voluntarily absenting himself or herself. Therefore, Florida Rule of
Criminal Procedure 3.180(c)(2) also applies only to voluntary absences.
The State cites Moody v. State,
713 So. 2d 1050 (Fla. 5th DCA 1998),
in support of the trial court’s exercise of discretion in sentencing appellant
in absentia. In Moody, the defendant filed a motion to determine
competency prior to sentencing.
Id. at 1050. Two doctors attempted to
interview the defendant, but he thwarted their efforts, although one filed
a report indicating that the defendant did not show any signs of delusion.
Id. The trial judge proceeded to sentencing, stating that based on her
observations the defendant was being manipulative and had voluntarily
absented himself from the sentencing hearing.
Id. The appellate court
found no abuse of discretion in sentencing the defendant in absentia
because the court could not be faulted “for refusing to permit the appellant
to thwart or impede the judicial process through his own misconduct.”
Id.
Unlike the trial court in Moody, the trial court in this case specifically
accepted the defense representation that appellant was legitimately in the
emergency room with an illness, which qualified as an involuntary
absence. Thus, in this case, the court sentenced a defendant who it found
was involuntarily absent, unlike the trial court in Moody that sentenced a
defendant whom it found was voluntarily absent.
In Wallen v. State,
932 So. 2d 493 (Fla. 4th DCA 2006), a defendant
sought reversal of his sentence because the court erred in sentencing him
while he was involuntarily absent due to an arrest in another state.
Id. at
493. We affirmed on the basis that the defendant did not prove his
absence was voluntary, of which he bore the burden.
Id. Similarly, the
court in Jackson v. State,
144 So. 3d 658 (Fla. 2d DCA 2014) applied
Wallen to require the defendant to prove that his absence from sentencing
was involuntary.
Id. at 659. The court noted, however, that a defendant
has a right to be present at sentencing unless he or she is voluntarily
absent from the hearing.
Id.
A defense counsel’s representations may be sufficient to show
involuntariness, absent any counter proof by the State. In Miller v. State,
833 So. 2d 318 (Fla. 2d DCA 2003), defense counsel apprised the court
that the defendant was bedridden and awaiting surgery at a hospital, thus
unable to attend a restitution hearing, yet the trial court proceeded with
the hearing.
Id. at 319. The Second District determined that the trial
court erred when it conducted a restitution hearing in the absence of the
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defendant without a showing that her absence was voluntary.
Id. It
remanded for a new sentencing hearing and not merely a hearing on
voluntariness as in Jackson. Id.; Jackson, 144 So. 3d at 660.
The appellant here was entitled to be present at his sentencing, and his
absence was involuntary. The trial court accepted the involuntariness of
his absence, based upon defense counsel’s presentation. We therefore
reverse the sentence, but we need not remand for a determination of the
voluntariness of the absence, as we would have done had the trial court
not already made that determination.
As resentencing will occur, we address the cost issues raised,
concluding that all the costs were mandatory and thus the court did not
err in assessing them. See Waller v. State,
911 So. 2d 226, 228 n.2 (Fla.
2d DCA 2005); Caldwell v. State,
125 So. 3d 1018, 1019 (Fla. 4th DCA
2013); Talbot v. State,
159 So. 3d 365 n.1 (Fla. 1st DCA 2015).
For the foregoing reasons, we reverse and remand for a new sentencing
hearing.
CONNER, J., concurs.
FORST, J., concurs in part and dissents in part with opinion.
FORST, J., concurring in part and dissenting in part.
I concur in the decision to reverse and remand for resentencing. I
respectfully disagree with the majority’s failure to order remand to a
different judge for resentencing. In his initial brief, Appellant requested
resentencing before a different judge, arguing that the skepticism
expressed by the trial court regarding Appellant’s absence, “coupled with
the maximum sentence imposed by the court[,] could create at least ‘the
appearance of prejudgment[.]’” (quoting Betty v. State,
233 So. 3d 1149,
1153 (Fla. 4th DCA 2017)). The State’s Answer Brief did not oppose this
request.
Here, the trial court sentenced Appellant without providing him an
opportunity to allocute, despite the trial court’s knowledge that Appellant
was in a hospital emergency room complaining of high blood pressure.
Based on the availability of counsel and the trial court, defense counsel
sought to reschedule resentencing to the following week. However, the
trial court ordered resentencing go forward without Appellant, even though
the State acknowledged a short postponement would not prejudice it, as
neither party intended to present witnesses at sentencing other than
Appellant.
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Both prosecution and defense counsel referenced Appellant’s
substantial assistance in prosecuting his co-defendants. The State
requested a sentence of ten years; the defense requested eight years. The
trial court, without any explanation, sentenced Appellant to twelve years.
In his request for resentencing before a different judge, Appellant
references two Florida appellate decisions. Neither are fully on point, but
our opinion in Betty is somewhat supportive of Appellant’s request. There,
the trial court made a sentencing ruling “before considering the evidence
and arguments to be presented on the issue,” creating “the appearance of
prejudgment” and thus necessitating sentencing by a different judge.
Betty, 233 So. 3d at 1153. Here, due to Appellant’s involuntary absence
from the sentencing hearing, the trial court made a significant ruling
(contrary to the requests of both parties), without affording Appellant the
opportunity to allocute or otherwise present evidence regarding the
sentence.
This court has remanded resentencing to a different judge in cases
where the court considered “impermissible factors in sentencing.” See
generally Lacey v. State, No. 4D20-0202,
2021 WL 718125 (Fla. 4th DCA
Feb. 24, 2021), and cases cited therein. Under the circumstances set forth
above, including the State’s failure to oppose Appellant’s request, I believe
it is as important here to remand for resentencing before a different judge
as it is in the “impermissible factors in sentencing” cases cited in Lacey,
“to preclude any perception on [the appellant’s] part that the resentencing
may not be conducted in a completely fair and impartial manner.” Id. at
*3 (quoting Schwartzberg v. State,
215 So. 3d 611, 616 (Fla. 4th DCA
2017)). Consequently, I respectfully dissent from the majority opinion’s
failure to order resentencing before a different judge. I otherwise fully
concur in the opinion.
* * *
Not final until disposition of timely filed motion for rehearing.
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