Hill v. State
Decision Date | 25 April 2018 |
Docket Number | No. 4D17–272,4D17–272 |
Citation | 246 So.3d 392 |
Parties | Harvey Michael HILL, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
Appellant Harvey Hill appeals his sentence entered after a violation of probation ("VOP") hearing by raising four issues on appeal. First, whether the trial court abused its discretion by failing to permit appellant to reopen his case after both parties had delivered their closing arguments. Second, whether the trial court failed to conduct an adequate Faretta inquiry when he asked to fire his attorney. Third, whether the trial court erred in denying appellant opportunities to make arguments on his own behalf at sentencing following the violation hearing. And fourth, whether a successor judge properly filed a written probation revocation order and denied appellant's rule 3.800(b)(2) motion based on rulings by a prior judge who had previously recused herself sua sponte. We affirm as to issues one and two without comment, but find that issue three has merit. We reverse for new sentencing on that ground, thus making the fourth issue moot.
At the end of his VOP hearing and following the close of the evidence and closing arguments, appellant was granted the right to discharge his attorney. He conducted the remainder of the hearing pro se, but with standby counsel available. While proceeding pro se, appellant made several requests to present additional evidence to the court, but the trial judge denied those requests.
Thereafter, as the court attempted to orally pronounce its ruling, appellant interrupted and made an ore tenus motion to disqualify the trial judge. This motion was also denied.
Then, without fully declaring its ruling on the VOP, the court asked for recommended sentences. The State recommended fifteen years in prison with credit for time served. Soon after, the following exchange occurred:
The court went on to find that appellant violated numerous conditions of probation, revoked and terminated that probation, and sentenced appellant to ten years in prison with credit for time served. The court never provided appellant the opportunity to make an allocution prior to imposing sentence. For the reasons set forth below, this was error.
"We have de novo review of a trial court's compliance with the guarantees of due process." Flegal v. Guardianship of Swistock , 169 So.3d 278, 281 (Fla. 4th DCA 2015).
The appellant did not make a contemporaneous objection to the court's failure to allow him to allocute before pronouncing sentence. Where the issue is not preserved, to qualify as fundamental error the error "must be basic to the judicial decision under review and equivalent to a denial of due process." Id. at 575 (quoting Hopkins v. State , 632 So.2d 1372, 1374 (Fla. 1994) ). However, if a defendant, or his counsel, makes it clear that he or she intends to offer an unsworn statement to the court, then the issue is properly preserved for appellate review. See Jean–Baptiste v. State , 155 So.3d 1237, 1240 (Fla. 4th DCA 2015) ; see also Jackson v. State , 983 So.2d 562, 578 (Fla. 2008). We therefore review this case de novo because appellant made a clear request to make an unsworn statement prior to sentencing.
Florida Rule of Criminal Procedure 3.720(b) imposes requirements on trial judges pertaining to sentencing. This rule states, "The court shall entertain submissions and evidence by the parties that are relevant to the sentence." (Emphasis added).
As this court noted in Jean–Baptiste :
155 So.3d at 1241–42. For our holding, we relied on several cases from this court recognizing a defendant's right of allocution.
For example, in Larrieux v. State , 138 So.3d 1221, 1221–22 (Fla. 4th DCA 2014), we held:
(Emphasis added).
On this issue, our sister courts agree. For example, the Third District has held:
[U]nder Florida Rule of Criminal Procedure 3.720(b), before imposing sentence the trial court is required to "entertain submissions and evidence by the parties that are relevant to the sentence." Under the rule, defendant was entitled to make a statement to the court. See Culbertson v. State , 306 So.2d 142, 143 (Fla. 2d DCA 1975). As we view the matter, the opportunity to address the court must be allowed even if the case involves a mandatory sentence. Respecting the right of the defendant to address the court "maxim...
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