Benitez v. State

• Citation: 57 So.3d 939
• Decision Date: 30 March 2011
• Docket Number: No. 3D09–2428.,3D09–2428.
• Parties: Sigifredo BENITEZ, Appellant,v.The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

57 So.3d 939

Sigifredo BENITEZ, Appellant,

v.The STATE of Florida, Appellee.

No. 3D09–2428.

District Court of Appeal of Florida, Third District.

March 30, 2011.

Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.Before GERSTEN, WELLS, and SALTER, JJ.WELLS, Judge.

Sigifredo Benitez appeals from an order revoking his probation and resulting sentence. He argues that what transpired at the hearing below amounted to a denial of his constitutional right to be “present” in court during a critical stage of the proceedings because no interpreter was present. We agree and reverse and remand on that basis.

In Summerall v. State, 588 So.2d 31, 32 (Fla. 3d DCA 1991), we observed that “[w]ithout question, the pronouncement of a verdict and sentence in a ... probation revocation hearing is a critical stage of the proceedings at which the defendant is entitled to be present, absent a voluntary waiver of same by the defendant. See Francis v. State, 413 So.2d 1175 (Fla.1982); Quarterman v. State, 506 So.2d 50, 52 (Fla. 2d DCA 1987), approved, 527 So.2d 1380 (Fla.1988); Fla. R. Crim. P. 3.180(a)(8), (9).” Likewise in Monte v. State, 443 So.2d 339, 342 (Fla. 2d DCA 1983), the court observed that “[t]he requirement of an interpreter at the sentencing hearing ensures that a non-English speaking defendant is truly ‘present’ at sentencing as contemplated by Florida Rule of Criminal Procedure 3.180(a)(9) and not merely physically there without the ability to understand or comment on the proceedings which will culminate in a circumscription of his liberty.” For, as explained in Cadet v. State, 809 So.2d 43, 45 (Fla. 4th DCA 2002) (quoting Tehrani v. State, 764 So.2d 895, 898 (Fla. 5th DCA 2000)):

A non-English speaking defendant has the right to an interpreter, a right grounded on due process and confrontation considerations of the Constitution. Suarez v. State, 481 So.2d 1201 (Fla.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2908, 90 L.Ed.2d 994 (1986). The right is not necessarily waived by the failure to assert it, since a defendant's inability to understand the language may be the cause of the failure to assert his rights. State v. Neave, 117 Wis.2d 359, 344 N.W.2d 181 (1984), approved in Suarez, 481 So.2d at 1204. Once the trial court is aware that an accused has difficulty with the English language, the court should determine whether a defendant understands English sufficiently to aid in his defense, much as the court has a duty to determine whether a defendant is mentally competent. 344 N.W.2d at 188.

Here, we cannot conclude that this right was satisfied.

In 1992, with an interpreter present, defendant entered into a guilty plea to “attempted capital sexual battery as reduced” and kidnapping. He was placed on probation in 2001, and in 2002, the Department of Corrections filed an affidavit of violation of probation.¹ At the August 7, 2009 hearing on the matter, the defense advised the court of the need for an interpreter. A plea was discussed and the State made an offer. The trial court declined that offer and ordered that testimony be taken. The defense again asked for an interpreter, and a break was taken. On the interpreter's arrival, the judge explained what had happened, and the violation hearing began, wherein defendant's supervising authorities gave testimony supporting three of the violations alleged—failing to submit reports, changing his residence without consent, and failing to submit to a polygraph examination.

At the August 14, 2009 hearing which followed, however, when defense counsel pointed out—two times while the judge was announcing his ruling and imposing sentence—that the defendant needed an interpreter and no interpreter was present, the judge failed to wait for the arrival of an interpreter and continued to making his findings and impose sentence. Then, when the interpreter arrived, the judge told the defense attorney to take the defendant “into the back and tell him the good news,” i.e. that the judge found him in violation of probation, revoked his probation, and sentenced him to...