Alvarez v. State

• Decision Date: 31 July 2002
• Docket Number: No. 4D00-4671.,4D00-4671.
• Citation: 827 So.2d 269
• Parties: Guadalupe ALVAREZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

827 So.2d 269

Guadalupe ALVAREZ, Appellant, v. STATE of Florida, Appellee.

No. 4D00-4671.

District Court of Appeal of Florida, Fourth District.

July 31, 2002.

Rehearing Denied October 21, 2002.

Carey Haughwout, Public Defender, and Iva Oza, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.

EN BANC

WARNER, J.

Appellant challenges his sentence following revocation of community control on the ground that the court erred in closing the courtroom during his revocation hearing pursuant to section 918.16, Florida Statutes (2000). We affirm because appellant's failure to object to the closure waived his right to a public trial. In doing so, we recede from Williams v. State, 736 So.2d 699 (Fla. 4th DCA 1999), to the extent it holds that failure to object to the closure of the courtroom does not constitute a waiver of the right to a public trial.

Having pled and been adjudicated guilty of possession of cocaine, cannabis, and drug paraphernalia, the court placed appellant on drug offender probation. After violating his probation, appellant was placed on community control. Later, an affidavit of violation of community control was filed, alleging that appellant had violated two conditions by committing a lewd and lascivious act on someone under the age of sixteen and leaving his residence without permission.

During the revocation hearing, the state called the victim of the alleged lewd act, and the prosecutor asked the judge to "clear the courtroom pursuant to Florida Statute 918.16, a sex victim testifying." The court instructed everyone to step outside. The prosecutor then asked for the victim's mother and advocate to stay in the courtroom. Defense counsel had no objection and made no other objection to the clearing of the courtroom. The court heard the testimony. After all the evidence was presented, the court found that appellant had violated the conditions of his community control. The court revoked appellant's community control and sentenced him to prison on the various charges, prompting this appeal in which appellant contends that he was denied his right to a public trial.

When a defendant is being denied the fundamental, constitutional right to a public trial, a court must engage in the following analysis:

There are four prerequisites that must be satisfied before the presumption of openness may be overcome. First, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; second, the closure must be no broader than necessary to protect that interest; third, the trial court must consider reasonable alternatives to closing the proceedings; and fourth, the court must make findings adequate to support the closure.

Pritchett v. State, 566 So.2d 6, 7 (Fla. 2d DCA 1990) (citing Waller v. Georgia, 467 U.S. 39, 47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)).

Section 918.16 requires the closure of a courtroom when a victim of a sex offense testifies and provides:

(1) ... in the trial of any case, civil or criminal, when any person under the age of 16 ... is testifying concerning any sex offense, the court shall clear the courtroom of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, court reporters, and, at the request of the victim, victim or witness advocates designated by the state attorney's office.

(Emphasis added).

In Clements v. State, 742 So.2d 338, 341 (Fla. 5th DCA 1999), rev. dismissed as improvidently granted, 782 So.2d 868 (Fla. 2001), the court held that closure pursuant to section 918.16, which exempts from exclusion certain members of the public, particularly news reporters, was a partial closure of a trial and the four-factor Waller inquiry was unnecessary. The court reasoned that, in enacting section 918.16, the legislature has implicitly reviewed the Waller factors and found that a compelling state interest exists in protecting child sexual battery victims. It has adopted a procedure that is narrowly drawn to protect that right.

Nevertheless, appellant claims that this case involved a total closure of the courtroom because the court ordered everyone to be removed, not permitting any exempted class of persons to stay. However, because appellant never raised an objection, there is nothing in the record to show whether statutorily permitted observers were excluded or permitted to stay. The record is silent as to who was removed from the courtroom and who was allowed to stay, except for the victim advocate and the victim's mother.¹

Regardless, as there was a closure, we must confront the question of whether appellant's right to a public trial can be waived by his failure to object to the closure. In Williams, 736 So.2d at 701, we held that failure to object to the closure of the courtroom does not constitute a waiver of the right to public trial, thus making the denial of a right to public trial a fundamental error, for which no objection is necessary to preserve the issue on appeal.

The state argues that the Sixth Amendment right to a public trial does not extend to probation or community control revocation proceedings because a probation revocation hearing is not a criminal prosecution. See State v. Woodland, 602 So.2d 554, 555 (Fla. 4th DCA 1992). The supreme court recognized as much in Bernhardt v. State, 288 So.2d 490, 498 (Fla. 1974), in which it followed Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Morrissey, the Court stated that "revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations."² 408 U.S. at 480, 92 S.Ct. 2593. While not entitled to the "full panoply of rights," Morrissey held that a parolee is entitled to due process, guaranteeing a parolee certain procedural protections, such as notice of the violations, disclosure to the parolee of the evidence against him, opportunity to be heard and to present witnesses and evidence, the right to confront and cross-examine witnesses, a "neutral and detached" hearing, and a written statement by the fact-finders as to the evidence relied on and reasons for revoking parole. See id. at 481-89, 92 S.Ct. 2593. However, the question of a right to a public trial was not addressed in Morrissey.

In Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960), the right to a public trial in a criminal contempt proceeding was held to be a due process right, even though contempt proceedings are not considered "criminal prosecutions" to which the Sixth Amendment applies. Writing for the Court, Justice Frankfurter stated:

But while the right to a `public trial' is explicitly guaranteed by the Sixth Amendment only for `criminal prosecutions,' that provision is a reflection of the notion, deeply rooted in the common law, that `justice must satisfy the appearance of justice.' Accordingly, due process demands appropriate regard for the requirements of a public proceeding in cases of criminal contempt, as it does for all adjudications through the exercise of the judicial power, barring narrowly limited categories of exceptions such as may be required by the exigencies of war.

Id. (emphasis added) (citations omitted).

These sentiments were reiterated in Waller v. Georgia, 467 U.S. 39, 44-48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), in which the Court held that closure of a pretrial suppression hearing violated a defendant's Sixth Amendment right. The Court said:

The central aim of a criminal proceeding must be to try the accused fairly, and "[o]ur cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant."

"`"The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions...."'"

In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury.

Id. at 46, 104 S.Ct. 2210 (footnote and citations omitted) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979)).

These values are no less pressing in a violation of probation proceeding than in the criminal prosecution that precedes it. The defendant's liberty is at stake, and the prosecutor must prove a violation of the conditions of the probationer's release. The judge must pass sentence and, in doing so, may consider the same sentencing factors which would apply to the initial sentence. Indeed, it is not uncommon for a defendant to receive probation rather than prison time for an offense, a violation of which could lead to a sentencing proceeding where the defendant could receive substantial prison time. Surely, these proceedings are as important to the defendant's liberty as is the criminal prosecution, and the defendant will desire the public presence to assure he/she is being fairly dealt with by the court. Finally, the public itself has a strong interest in observing whether the defendant is being treated fairly in accordance with the nature of the criminal acts.

We have noted that the public's right to be informed applied to sentencing proceedings. See Miami Herald Publ'g Co. v. State, 363 So.2d 603, 605 (Fla. 4th DCA 1978). Indeed, the supreme court has gone even further, holding "that all trials, civil and criminal, are public events and there is a strong presumption of public access to these proceedings and their records, subject to certain narrowly defined exceptions." Barron v. Fla. Freedom Newspapers,...