Hill v. State, No. 4D17–272

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Klingensmith, J.
• Citation: 246 So.3d 392
• Parties: Harvey Michael HILL, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 25 April 2018
• Docket Number: No. 4D17–272

246 So.3d 392

Harvey Michael HILL, Appellant,
v.
STATE of Florida, Appellee.

No. 4D17–272

District Court of Appeal of Florida, Fourth District.

[April 25, 2018]

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.

Klingensmith, J.

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

246 So.3d 394

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 STATE]: And Judge, actually I'm sorry, did you make findings in relations to the violations? I think you asked for—

THE COURT: I haven't yet; I'm getting ready to do that.

[THE STATE]: Okay.

[APPELLANT]: Well, I would like to speak on my behalf, Judge.

THE COURT: All right.

[APPELLANT]: When you get a chance.

THE COURT: I'm finding the State has proven by preponderance—

[APPELLANT]: I would like to speak—

THE COURT: —of the evidence—sir? Uhm, the State has proven by a preponderance of the evidence that you were based on the testimony that we heard on March 14th, 2016 as well as December 1st, 2016 as well as the evidence presented today the Court has taken into consideration all that evidence finding that the State has proven by a preponderance of the evidence that you were informed of your conditions of probation by a probation officer at the time—soon after your sentence soon after you were placed on probation.

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

246 So.3d 395

appellant made a clear request to make an unsworn...