Elmer v. State

• Decision Date: 20 June 2014
• Docket Number: No. 5D13–3138.,5D13–3138.
• Citation: 140 So.3d 1132
• Parties: Russell Glen ELMER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

140 So.3d 1132

Russell Glen ELMER, Appellant,

v.STATE of Florida, Appellee.

No. 5D13–3138.

District Court of Appeal of Florida, Fifth District.

June 20, 2014.

James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent–Tripp, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

After Russell Elmer's convictions for capital sexual battery of his step-daughter were reversed on appeal, he pled no contest on remand to three counts of attempted sexual battery and agreed to pay restitution for the victim's medical expenses and counseling. He now appeals the final restitution order, arguing first that the record does not demonstrate that he knowingly, intelligently, and voluntarily waived his presence at the hearing. Although the State correctly concedes error, neither party addresses the issue of whether this unpreserved error is fundamental. It is not. Although such error is often fundamental, case law holds that it is not fundamental when the defendant agrees to pay restitution as part of a plea agreement, the defendant has notice of the hearing, and his counsel affirmatively waives his presence at the hearing. Accordingly, we affirm as to this issue. Elmer also attacks each component of restitution ordered as improper, but we find error only in the award of lost wages, which is conceded by the State. Finally, Elmer is also correct that the trial court erred in admitting the victim's treatment records without first conducting a Richardson¹ hearing. Having reviewed the treatment records in light of the entire record, however, we conclude that the error in admitting the treatment records at the end of the restitution hearing was harmless beyond a reasonable doubt. No other issue merits discussion.

Relevant Facts

Elmer was arrested in 2010 for sexual crimes against his step-daughter that occurred before April 1989.² In 2011, he was tried and convicted of three counts of (capital) sexual battery upon a person under twelve years old. In 2012, this court reversed his convictions and remanded for a new trial. Elmer v. State, 114 So.3d 198 (Fla. 5th DCA 2012).

On remand in January 2013, Elmer entered into a plea agreement, pursuant to which he pled no contest to three counts of attempted sexual battery upon a person under twelve years old. He received five years in prison (with credit for time served), followed by 7.5 years of sex offender probation. As a condition of probation, Elmer agreed to pay “restitution to victim or victim's family for any medical expenses and counseling—restitution amount is to be determined.”

It appears from the record that Elmer was released from prison shortly after his sentence was imposed. In February 2013, Elmer filed a motion to modify probation. The court minutes for the hearing on that case reflect that he was present, but not in custody. In May, Elmer's probation officer asked the court to modify his curfew so that he could commute to work in Hernando County.

Court minutes for June 18, 2003, reflect that Elmer's presence was waived for a restitution hearing, which was continued to July 16th. Court minutes for July 30th reflect that Elmer's presence was waived for a restitution hearing in which restitution was ordered.

At the outset of the July 30th hearing, the following exchange occurred:

The Court: Russell Elmer. You're waiving your client's appearance?

[Defense Attorney]: I'm waiving my client's appearance.

The 36–year–old victim testified that she was the victim of several sexual batteries by Elmer that occurred when she was younger than twelve years old. She suffered emotional and psychiatric problems requiring treatment. She first sought help in 2011 at The Refuge, an inpatient trauma rehabilitation center with intense counseling. She stayed there five weeks and was treated for post-traumatic stress disorder (PTSD).

Before entering The Refuge, she spent three days at The Vines, a detox facility, to detoxify from alcohol and Xanax dependence. Although The Vines did not address the causes of her addiction, The Refuge required her to detoxify there before entering its treatment program. Her addiction was her way of “dealing with the pain and the hurt.” The Vines charged her $2,200 and The Refuge charged her $18,480. Insurance did not cover those bills. She paid some of the bill for The Refuge, but there was an $11,000 balance outstanding. She signed a contract promising payment.

The victim requested lost wages of $875 for herself and $2,205 for her husband while she was in treatment. The victim's husband had to stay home from his lawn business with their five children while she was gone. On cross-exam, the victim admitted that she left her employment as a paralegal to enter treatment and did not return to the same employer afterward.

The victim also sought reimbursement for other expenses relating to her treatment, such as travel costs to and from treatment. In total, the State sought $24,252.42 in restitution, which the trial court ordered. In addition to the victim's testimony linking these costs to Elmer's crimes, the State called a certified trauma therapist and addictions professional from The Refuge, who helped treat the victim for PTSD, depression, anxiety and polysubstance abuse. This mental health professional linked the victim's mental health and substance abuse problems to the abuse that she suffered at the hands of Elmer. This witness also testified that the victim should have stayed longer at The Refuge, but did not have the financial resources to do so.

When the prosecutor attempted to introduce the victim's treatment records from The Refuge, defense counsel objected because the prosecutor had not provided the records to him beforehand. The trial court found the victim's treatment records to be cumulative of what had already been testified to by the victim and the mental health professional from The Refuge, and admitted the same.

In closing argument, defense counsel argued that although Elmer had agreed to pay restitution, case law mandated that such restitution was limited to what was proven to arise out of the offenses charged. Defense counsel argued that: (1) the amounts sought were “exorbitant” given that the crimes occurred about thirty years before; (2) there was “some connection” [between the crimes and restitution sought], “but all of it cannot be attributed to what happened thirty years ago” and the State failed to prove what percentage was attributable to Elmer's conduct; (3) restitution for the victim's lost wages was improper because she left her employment to go into treatment and did not return; and (4) restitution for the husband's lost wages was improper because he did not have much lawn business in January.

The court ordered restitution for the entire amount sought, finding a “rock solid connection and nexus to the posttraumatic stress of which this woman suffers and the need for it to be taken care of at The Refuge, A Healing Place.” The court reiterated that it did not believe that the victim was trying to “ ‘get well’ at the instances of Russell Elmer,” but instead, “every single burden that has been visited upon” the victim resulted from “the criminality of Russell Elmer.”

After the court entered restitution orders, Elmer timely appealed. He then filed a motion to correct sentencing error pursuant to rule 3.800(b)(2). He argued that: (1) under the statute in effect at the time of the crime, only the victim could receive restitution, thus restitution for her husband's lost wages was improper; and (2) under that same statute, restitution for the victim's lost wages was only proper if the victim suffered bodily injury from the crime, which did not occur in this case. Upon being ordered to respond, the State conceded that the victim's husband's lost wages were not awardable, but asserted the victim's lost wages were appropriate because the applicable statute did not require bodily injury. The court agreed with the State's position, striking the lost wages for the victim's husband, but retaining them for the victim.

Waiver of Elmer's Presence at Hearing

Elmer argues, and the State agrees, that the trial court reversibly erred by conducting a restitution hearing without determining if Elmer's waiver of presence was knowing, intelligent and voluntary. Defendants have a constitutional right to be present at all stages of a criminal proceedings, including restitution hearings. J.C. v. State, 1 So.3d 1196, 1197 (Fla. 5th DCA 2009). The State has the burden to show that the defendant knowingly and voluntarily waived his right to be present, either by an express waiver or as implied by the circumstances of his voluntary absence. Id. Although a defendant may waive this right and exercise constructive presence through counsel, the court must determine that the defendant's waiver is knowing, intelligent, and voluntary. Knespler v. State, 72 So.3d 299, 300 (Fla. 4th DCA 2011); M.W.G. v. State, 945 So.2d 597, 600 (Fla. 2d DCA 2006). The right to be present is a basic right that the defendant's attorney cannot waive without the fully informed and publicly acknowledged consent of the defendant. Taylor v. Illinois, 484 U.S. 400, 418 n. 24, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988); see also 22 Fla. Prac., Criminal Procedure § 12:2 (2014 ed.) (“Accordingly, a trial judge may not accept the simple representation of a defense attorney that his client has waived his right to be present at a stage of a criminal proceeding at which the defendant has the right to be present. Instead, the judge may lawfully conduct the proceeding only upon establishment on the record that the defendant has knowingly, intelligently, and voluntarily waived his right to be present.”).

In this case, the trial court simply asked defense counsel if he waived Elmer's presence and defense counsel said yes. The State concedes that it did not establish...