M.W.G. v. State, 2D06-388.

• Decision Date: 20 December 2006
• Docket Number: No. 2D06-388.,2D06-388.
• Citation: 945 So.2d 597
• Parties: M.W.G., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

945 So.2d 597

M.W.G., Appellant, v. STATE of Florida, Appellee.

No. 2D06-388.

District Court of Appeal of Florida, Second District.

December 20, 2006.

COPYRIGHT MATERIAL OMITTED

James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

STRINGER, Judge.

M.W.G. appeals from the restitution order entered after he pleaded guilty to burglary of a structure. Because the trial court conducted the restitution hearing in M.W.G.'s absence without competent, substantial evidence to establish that M.W.G. had waived his right to be present or that he had voluntarily absented himself from the hearing, we reverse and remand for a new hearing.

The State charged M.W.G. with burglary of a structure and grand theft as a result of events which occurred on October 12, 2003. On November 29, 2005, M.W.G. pleaded guilty to the burglary charge, and the State dropped the grand theft charge. The parties agree that at the November 29 change of plea hearing, the trial court advised M.W.G. that a restitution hearing would be held on January 12, 2006.

On January 12 at the scheduled hearing time, the bailiff sounded the halls for M.W.G., but M.W.G. was not present. After the bailiff advised the court of this and before the prosecutor even spoke, the judge stated, "Can't I find that that's a voluntary absence and proceed forward? Okay, because I—I pulled some case law here on this issue." The judge then discussed at length the case law she had pulled on the issue of criminal defendants waiving their right to be present for court proceedings.

When the judge was finished with her discussion, defense counsel argued that there could be a legitimate reason for M.W.G.'s absence and that that reason could also be preventing him from notifying the court of the reason for his absence. Defense counsel also argued that the State had the burden to prove that M.W.G. had voluntarily waived his right to be present. In response, the judge stated, "Well, can't they show that by looking at the Court record?" Defense counsel replied that the State could not do so, noting that the court record could prove notice, but not that M.W.G. had voluntarily waived his appearance. The judge then stated:

And if you were to have contact with him, then I would reset the hearing, but at this point there's nothing before me to show that he's doing anything other than just choosing not to appear.

The judge then proceeded to go through the court file with the court clerk and note the times when M.W.G. had not been present for other hearings. Based solely on the record of those prior nonappearances, the trial court found that M.W.G. had voluntarily waived his right to be present at the restitution hearing and that "the State's burden has been established by the record itself."

Having determined that M.W.G. had waived his right to be present, the court permitted the State to call the victim to testify to the value of the items stolen during the burglary. At the conclusion of the hearing, the trial court entered a restitution order in the amount of $8085. The trial court made no findings in its order as to what amount M.W.G. might reasonably be expected to earn upon finding employment or whether M.W.G. could reasonably pay the amount of restitution ordered. M.W.G. now challenges the propriety of the restitution order in this appeal.

A defendant has the constitutional right to be present at all stages of the trial at which fundamental fairness might be thwarted by his absence. Coney v. State, 653 So.2d 1009, 1013 (Fla.1995). This includes hearings at which the imposition of and the amount of restitution are to be determined. See, e.g., T.A.S. v. State, 892 So.2d 1233, 1234 (Fla. 2d DCA 2005); Miller v. State, 833 So.2d 318, 319 (Fla. 2d DCA 2003); J.B. v. State, 646 So.2d 808 (Fla. 1st DCA 1994). However, a defendant can waive this right and exercise constructive presence through counsel. Coney, 653 So.2d at 1013. If the defendant does so, before the proceedings may commence, the court must determine that the defendant's waiver of the right to be present is knowing, intelligent, and voluntary. Id.; see also Miller, 833 So.2d at 319; Papageorge v. State, 710 So.2d 53, 55 (Fla. 4th DCA 1998). The State has the burden of proving that the defendant knowingly and voluntarily waived the right to be present. T.A.S., 892 So.2d at 1234; J.B., 646 So.2d at 808. In the alternative, a defendant may voluntarily absent himself from the proceedings by intentionally fleeing the jurisdiction or by leaving court during the proceedings. Capuzzo v. State, 596 So.2d 438, 440 (Fla.1992); Santeufemio v. State, 745 So.2d 1002, 1003 (Fla. 2d DCA 1999).

In this case, there is nothing in the record to show that M.W.G. voluntarily absented himself from the proceedings by fleeing the jurisdiction or leaving court during the proceedings. Therefore, the question before the trial court was whether M.W.G. had knowingly, intelligently, and voluntarily waived his right to be present at the restitution hearing, and it was the State's burden to present proof of this waiver. However, the State presented no evidence at the hearing. Instead, the trial court simply reviewed the court file, found that M.W.G. had failed to appear for arraignment and two pretrial status checks, and concluded that M.W.G.'s failure to appear at previous proceedings in the case established that he had waived his right to appear at the restitution hearing. This finding cannot stand for two reasons.

First, the record concerning M.W.G.'s earlier absences does not establish the reason for them. While it is possible that M.W.G. simply decided not to show up for those proceedings, it is equally possible that M.W.G. voluntarily waived his presence at the status checks and appeared constructively through counsel. Such a waiver for certain pretrial proceedings does not constitute a blanket waiver for all subsequent court proceedings,...