Hilliard v. State, 2D13–5910.
| Decision Date | 10 July 2015 |
| Docket Number | No. 2D13–5910.,2D13–5910. |
| Parties | Samuel C. HILLIARD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender; Lynda Beth Barack, Special Assistant Public Defender; and Lisa B. Lott, Assistant Public Defender (substituted as counsel of record), Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
Samuel Cornel Hilliard appeals his judgments and sentences for delivery of cocaine, possession of cocaine, and possession of paraphernalia. The trial and sentencing hearing were conducted in Mr. Hilliard's absence. We conclude that the trial court erred in summarily denying a motion following sentencing that challenged whether his absence was voluntary. As we did in Jackson v. State, 144 So.3d 658 (Fla. 2d DCA 2014), we remand this case for an evidentiary hearing on the motion to determine the factual issue of whether his absence from both his trial and sentencing hearing was voluntary or involuntary.
Mr. Hilliard was charged with these offenses in May 2013 within about six months of his release from prison for other offenses. His trial was first set for September 16, 2013. He did not appear and a capias was issued. On September 17, he filed a motion to withdraw the capias, in which he stated that his failure to appear was not willful but was due to his admission to Northside Mental Health Center on September 13. A letter from his case manager was attached to his motion and explained that as of September 16, Mr. Hilliard had not been discharged. His trial was continued and rescheduled for October 28, 2013.
Mr. Hilliard attended jury selection as scheduled on October 28. On that day, the trial court ordered him to appear for trial on October 31, 2013, and advised him that the trial could continue in his absence if he did not appear. Mr. Hilliard failed to appear for trial on October 31, 2013. Mr. Hilliard's attorney informed the trial judge that he had not heard from him and did not know where he was. The judge commented on the record that while he did not know whether something had happened to Mr. Hilliard or why he had not appeared, the court had warned Mr. Hilliard that his trial could continue in his absence and thus it would. The trial proceeded without Mr. Hilliard, and he was convicted as charged that same day. The trial court immediately sentenced Mr. Hilliard in absentia to concurrent sentences, the longest of which is fifteen years' imprisonment.
On November 15, 2013, Mr. Hilliard was arrested for failure to appear. On November 22, 2013, Mr. Hilliard's attorney filed a motion in which he represented that Mr. Hilliard did not appear for trial on October 31 because he was hospitalized that day at Tampa General Hospital and subsequently transferred to Memorial Hospital under the Baker Act. Mr. Hilliard apparently had been released from the hospital on November 1. Mr. Hilliard's attorney supported his motion with a copy of the medical records from this hospitalization. Neither the motion nor the record explains Mr. Hilliard's whereabouts for the two weeks following his release from the hospital. The trial court summarily denied this motion.1
Among a defendant's most basic constitutional rights is the right to be present at all critical stages of his criminal proceeding, including trial and sentencing. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). It is possible, however, to waive this right. See id. at 339–47, 90 S.Ct. 1057 ; see also Blair v. State, 25 So.3d 46, 47 (Fla. 5th DCA 2009). Florida Rule of Criminal Procedure 3.180(c) accordingly provides that a defendant's trial and sentencing can proceed when the defendant is present at the beginning of trial but thereafter “voluntarily absents himself or herself.” Fla. R. Crim. P. 3.180(c)(1)-(2). Once a defendant appears for the commencement of trial but is thereafter absent, it is the defendant's burden to demonstrate to the trial court that his or her absence was involuntary. See Jackson, 144 So.3d at 659 ; Blair, 25 So.3d at 48.
Here, the trial court did not err by proceeding with the trial and sentencing without Mr. Hilliard where Mr. Hilliard had appeared for jury selection and was warned that his trial could continue without him if he did not thereafter appear. It did err, however, in summarily denying Mr. Hilliard's motion without granting him an evidentiary hearing to determine whether his absence was voluntary or involuntary. See Jackson, 144 So.3d at 659–60 ; Blair, 25 So.3d at 48–49. The submission of his hospital records, which showed that...
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Elder v. State
...of whether the plea was appropriately accepted; we had already determined that the plea was invalid. Cf. Hilliard v. State, 169 So.3d 264, 266 (Fla. 2d DCA 2015) ("We thus remand this case to the trial court for an evidentiary hearing to determine whether Mr. Hilliard's absence from his tri......