Brown v. State

Decision Date09 March 2022
Docket Number4D20-1426
Citation335 So.3d 123
Parties Jamylin Jamon'e BROWN, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Carey Haughwout, Public Defender, and Cynthia L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.

ON APPELLANT'S MOTION FOR REHEARING OR CLARIFICATION, AND MOTION FOR CERTIFICATION OF QUESTION OF GREAT PUBLIC IMPORTANCE

Gerber, J.

We deny the defendant's motion for rehearing of our opinion which issued January 12, 2022. However, we grant the defendant's alternative motion for clarification of the opinion, and grant in part the defendant's motion for certification of a question of great public importance. Thus, we issue the following opinion to replace our January 12, 2022, opinion.

The defendant, a juvenile charged as an adult, appeals from his sentences following his no contest plea to robbery with a deadly weapon while masked, and burglary of a structure while armed and masked with an assault or battery. The defendant argues the circuit court erred in two respects: (1) fundamentally, by conducting the sentencing hearing with the defendant appearing remotely by video; and (2) reversibly, by denying the defendant's request for a downward departure sentence.

We affirm on both arguments. We write to provide discussion of the first argument only.

Procedural History

The seventeen-year-old defendant and the twenty-two-year-old co-defendant robbed a gas station's convenience store while armed with handguns. According to the arrest affidavit, the store's surveillance video showed the following:

The [co-defendant] went around to the register and removed the entire drawer. The [defendant] stood watch at the front door and pointed a black pistol at the clerk several times. The [co-defendant] stopped the clerk on the way out of the store and demanded his money to which the clerk reached in his pocket and then put the money in the cash register drawer. Both suspect males then fled out of the store ....

The defendant and the co-defendant were arrested later that same night. The defendant, after waiving his Miranda rights, told the police that the co-defendant had planned the robbery, he (the defendant) had agreed to participate in the robbery, and the co-defendant had given him a handgun to use during the robbery.

The state charged the defendant (and the co-defendant) with two counts: robbery with a deadly weapon while wearing a mask, and burglary of a structure while armed and masked with an assault or battery. Both offenses were first-degree felonies.

Before the pandemic affected courthouse operations, the defendant entered a no contest plea to both charges. Thus, at the plea hearing, the defendant was physically present in the courtroom with his counsel. The defendant acknowledged his lowest permissible prison sentence was 75.75 months, and the maximum was life in prison. After accepting the defendant's plea, the judge scheduled a sentencing hearing.

The judge continued the sentencing hearing twice before the pandemic affected courthouse operations. The judge granted the second continuance so defense counsel could have more time to review the convenience store's surveillance video and present witnesses in an effort to mitigate the defendant's culpability compared to the co-defendant.

By the time the third sentencing date arrived, the pandemic had resulted in courthouse closures. The judge rescheduled the sentencing hearing for a fourth date.

On the fourth sentencing date, the defendant appeared by video from the county jail. The judge stated the defendant's sentencing hearing would have to be rescheduled again. A jail deputy responded that the defendant had heard the judge. The judge proposed a fifth sentencing date for later that week, and the following discussion occurred between the judge and defense counsel:

JUDGE: ... [T]he reality is if you're available Thursday or Friday, we're looking to get camera time Thursday and Friday, are you available?
....
DEFENSE COUNSEL: [Y]es, Your Honor.
JUDGE: All right. I'll have [my judicial assistant] ... get in touch with you as soon as we know what day that we are able to get camera time and if you're still available, we'll do it then.
DEFENSE COUNSEL: Perfect.

(emphasis added).

On the fifth sentencing date, the defendant appeared remotely from the county jail by video, but the attorneys, defense witnesses, and the judge were physically present in the courtroom. All wore face masks, including the defendant. After swearing in the defendant, the judge asked him: "I can see you by Zoom video. I believe you can see me, yes?" The defendant answered: "Yes, sir." The judge asked defense counsel if any reason existed why sentencing could not proceed. Defense counsel answered: "No, sir." The judge did not conduct a colloquy to determine if the defendant waived his physical presence at sentencing.

Defense counsel called the defendant to testify. During the defendant's testimony, he was wearing a face mask and defense counsel had to ask the defendant to "speak up." Direct examination lasted fourteen minutes, and nearly half of that time, the defendant's face was not visible on the projected screen. Instead, only the top of his head could be seen.

The defendant testified that on the day when the robbery occurred, he had just met the co-defendant through a friend. While they were leaving the friend's house by car, the co-defendant asked the defendant if he wanted to rob a store. The defendant laughed at the co-defendant at first. The co-defendant "kept questioning [the defendant] telling [the defendant] he just needed [the defendant] to hold the door" during the robbery. "After ten minutes [the defendant] just told [the co-defendant] [he'd] do it."

When they got to the store, the co-defendant pulled out two guns from under the car's seat, and gave the defendant a gun. The defendant verified that the gun which the co-defendant gave him was not loaded. During the robbery, the defendant held the door like the co-defendant had asked him to. After the robbery, the defendant and co-defendant were stopped by police, and the defendant told the police "everything."

At the end of defense counsel's direct examination, the defendant read to the judge a prepared statement in which he expressed remorse for his actions. After the defendant read his statement, defense counsel mentioned the surveillance video, and said he "would stipulate that [the defendant] was at the door holding a weapon."

The prosecutor then cross-examined the defendant for two minutes. Although the defendant's masked face had greater visibility during cross-examination than during direct testimony, his face still was not visible for nearly forty seconds. Further, in responding to one of the prosecutor's questions, the defendant referred to the prosecutor as "Your Honor." The prosecutor then corrected the defendant: "[I]t's not the judge [who's] asking ... questions right now, it's the prosecutor ... just so we're clear. I know you can't see me."

After the defendant's testimony, defense counsel had the defendant's father and stepmother testify on the defendant's behalf, and then rested.

The prosecutor introduced the store's surveillance video into evidence, without objection. Because the courtroom had no screen, the prosecutor brought his laptop computer to the bench so the judge could view the surveillance video. Defense counsel moved to a spot in the courtroom where he also could view the surveillance video. Defense counsel did not object that the defendant was unable to view the surveillance video.

After playing the surveillance video, the state requested the judge, without objection, to take judicial notice of various items from the court file, including the Department of Juvenile Justice's summary of the defendant's juvenile criminal record. The defendant's juvenile criminal record indicated, among other things, that he had "a significant history of noncompliance with authority, ... problems controlling his behavior, history of substance use, documented gang member/associate, and continues to put himself in danger...."

In closing, defense counsel requested a downward departure sentence based on various mitigating circumstances, including that the defendant allegedly was an accomplice with relatively minor participation; he allegedly had acted under duress and/or the older co-defendant's domination; and the offenses allegedly constituted an isolated incident committed in an unsophisticated manner, for which he had shown remorse.

The state opposed the downward departure request, and recommended a thirty-five-year sentence. The state noted: "The defendant was in possession of a firearm. He did point it at the clerk in the store. The state would disagree that he was only a minor ... [participant] in this offense, based on what is seen in the video."

At the hearing's conclusion, the judge denied the defendant's request for a downward departure sentence, pertinently reasoning:

The defense has indicated that [the defendant] was a relatively minor participant in this. While it can be viewed in that light, I've reviewed the [surveillance video]. It's readily apparent that [the defendant] was acting in the capacity of a participant and look out. He was at the door. He was seen viewing inside the store, outside the store, was blocking the door both for exit and entry. And much as indicated by counsel, he was seen pointing the firearm directly at the victim in the case.
As it relates [to] duress or domination under another, the court finds that the evidence in viewing it, not that [the defendant] is under the duress of another individual, but he was an active participant. I note the age difference [between the defendant and the co-defendant], but I also note ... the manner in which [the defendant] acted during the time of the actual robbery.
....
As it relates to
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4 cases
  • Gonzalez v. State
    • United States
    • Florida District Court of Appeals
    • 27 d3 Julho d3 2022
    ...So.3d 169 in his not being physically present for the remote proceeding must rise to the level of fundamental error. See Brown v. State, 335 So. 3d 123, 127-28 (Fla. 4th DCA 2022).3 Below, we analyze each of Gonzalez's alleged assignments of fundamental error with respect to the trial court......
  • Gonzalez v. State
    • United States
    • Florida District Court of Appeals
    • 27 d3 Julho d3 2022
    ... ... was temporarily suspended,[2] Gonzalez acknowledges that he must ... establish that any error in his not being physically present ... for the remote proceeding must rise to the level of ... fundamental error. See Brown v. State, 335 So.3d ... 123, 127-28 (Fla. 4th DCA 2022).[3] Below, we analyze each of ... Gonzalez's alleged assignments of fundamental error with ... respect to the trial court's conducting, remotely, both ... Gonzalez's violation of probation hearing and the ... ...
  • S.I. v. State
    • United States
    • Florida District Court of Appeals
    • 17 d3 Agosto d3 2022
  • S.I. v. State
    • United States
    • Florida District Court of Appeals
    • 6 d3 Julho d3 2022
    ... ... violate either appellant's due process rights or his ... Confrontation Clause rights under the Sixth Amendment or as ... found in the Florida Constitution. E.A.C. v. State, ... 324 So.3d 499 (Fla. 4th DCA 2021); Brown v. State, ... 335 So.3d 123 (Fla. 4th DCA 2022). However, in ... Brown, our court did certify the following question ... to the Florida Supreme Court: ... WHETHER FUNDAMENTAL ERROR OCCURS WHEN A CRIMINAL ... DEFENDANT, PURSUANT TO IN RE COMPREHENSIVE COVID-19 ... ...

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