Aguiar v. State, 93-1062

• Decision Date: 15 March 1994
• Docket Number: No. 93-1062,93-1062
• Citation: 633 So.2d 557
• Parties: 19 Fla. L. Weekly D594 Lazaro Miguel AGUIAR, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 557

633 So.2d 557

19 Fla. L. Weekly D594

Lazaro Miguel AGUIAR, Appellant, v. The STATE of Florida, Appellee.

No. 93-1062.

District Court of Appeal of Florida Third District.

March 15, 1994.

Bennett H. Brummer, Public Defender, and Manuel Alvarez, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Fleur J. Lobree, Asst. Atty. Gen., for appellee.

Before BASKIN, LEVY and GERSTEN, JJ.

LEVY, Judge.

Lazaro Miguel Aguiar, the defendant, appeals the denial of his Rule 3.850 motion to vacate his sentence which was imposed in absentia. We affirm based upon our finding that the defendant waived his right to be present at sentencing by reason of his voluntary absence.

The defendant was arrested and charged with nineteen counts of lewd assault, and three counts of capital sexual battery. At the defendant's trial, and during the State's case, the defendant left the courtroom for a break, and did not return. The only State witness who had not testified as of the time of the defendant's departure, was a detective, whose testimony related to the defendant's admission that he had intercourse with the victim when she was eleven. The trial court issued a warrant for the defendant's arrest, and the trial proceeded in the defendant's absence. See Fla.R.Crim.P. 3.180(b). ¹ The jury returned guilty verdicts for the three counts of sexual battery upon a minor, and not guilty verdicts for the twenty counts of lewd assault. The trial court then adjudicated the defendant guilty of three counts of capital sexual battery, and proceeded to sentence the defendant, in absentia, to three concurrent life terms. ²

Thereafter, the defendant was taken into custody, and filed a motion to vacate the sentence under Florida Rule of Criminal Procedure, Rule 3.850. The trial court denied the motion to vacate on the basis that it did have the authority to sentence the absconding defendant in absentia, and the defendant now appeals.

Sentencing is a critical stage in a criminal prosecution and a defendant has the right to be present "at the pronouncement of judgment and the imposition of sentence." Fla.R.Crim.P. 3.180(a)(9). See also Capuzzo v. State, 578 So.2d 328 (Fla. 5th DCA 1991) (defendant has right to be present at sentencing), decision approved by, 596 So.2d 438 (Fla.1992); Summerall v. State, 588 So.2d 31 (Fla. 3d DCA 1991) (sentencing is critical stage where defendant has right to be present); Thacker v. State, 185 So.2d 202 (Fla. 3d DCA 1966) (same). And, while at one time there was a conflict among the districts as to whether that right could be waived, see Capuzzo v. State, 578 So.2d at 328; Wagner v. State, 519 So.2d 751 (Fla. 4th DCA 1988), disapproved of by, 596 So.2d 438 (Fla.1992); Quarterman v. State, 506 So.2d 50 (Fla. 2nd DCA 1987), disapproved of by, 596 So.2d 438 (Fla.1992); Roseman v. State, 497 So.2d 986 (Fla. 5th DCA 1986), the Florida Supreme Court has now established that a defendant may waive his constitutional right to be present at sentencing, and may be sentenced in absentia. Capuzzo v. State, 596 So.2d 438 (Fla.1992). See also State v. Gurican, 576 So.2d 709, 712 (Fla.1991) ("where the convicted defendant escapes and fails to appear for sentencing, we advise trial courts to proceed in absentia and render their final judgments adjudicating the defendant guilty").

We disagree with the defendant's argument that Capuzzo is distinguishable from the present case based upon the fact that the defendant in Capuzzo had actual notice of the sentencing hearing. In Capuzzo, the defendant had entered a plea, and a sentencing hearing was scheduled. The defendant failed to appear at the scheduled sentencing hearing. The specific issue addressed by the Court was whether a defendant could be sentenced in absentia, where the defendant voluntarily failed to attend a scheduled sentencing hearing.

The Court in Capuzzo upheld the trial court's determination that a defendant could be sentenced in absentia under these circumstances, and, in so doing, specifically disapproved of a Fourth District decision with procedural facts substantially similar to those of the present case. Capuzzo, 596 So.2d at 440. In the Fourth District case of Wagner v. State, 519 So.2d 751 (Fla. 4th DCA 1988) the defendant also voluntarily absconded during trial, and was convicted and sentenced without actual notice of a sentencing hearing. The Florida Supreme Court specifically disapproved of the holding in Wagner, that a "trial court has no authority to impose sentence for a felony in absentia." Capuzzo, 596 So.2d at 440 (quoting Wagner, 519 So.2d at 752).

More importantly, in reaching the conclusion that a defendant who voluntarily fails to attend a scheduled sentencing hearing can be sentenced without being present, the Capuzzo Court noted further that:

We see 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. Neither precedent nor common sense requires allocating more "protection" to a defendant's presence during sentencing than, for example, his or her presence at the return of the verdict, upon which the trial's most fateful determination rests, (i.e., the fundamental determination of guilt or innocence).

Capuzzo, 596 So.2d at 440 (emphasis added).

Accordingly, we see no reason to distinguish between the defendant who absconds with actual notice of a scheduled sentencing hearing, and the defendant who absconds during trial proceedings, ³ thereby waiving the opportunity of learning the sentencing date that is set once the defendant...