Reynolds v. State
| Decision Date | 24 March 2021 |
| Docket Number | No. 4D19-3207,4D19-3207 |
| Parties | Danny Mark REYNOLDS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Robert Porter, Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
The appellant defendant failed to appear at his sentencing hearing because he was in the emergency room. The court continued with sentencing, concluding that Florida Rule of Criminal Procedure 3.180(c)(2) (2019) allows the court to sentence a defendant in absentia even where the absence is involuntary. We conclude that the rule applies only to voluntary absences, and where the defendant's absence is involuntary, sentencing in absentia violates the defendant's Sixth Amendment rights. Therefore, we reverse and remand for resentencing.
Appellant was charged with sixty-five felony counts involving racketeering, grand theft, securities fraud, and other charges. Appellant originally entered a plea of not guilty but changed his plea to guilty in a plea agreement in 2016. As part of the plea agreement, appellant agreed to cooperate in the prosecution of his co-defendants. The agreement set forth appellant's potential punishment exposure for his crimes. His adjudication and sentence would be deferred until after the trials of his co-defendants and, per the agreement, he agreed to a sentence of eight-to-twelve years in prison followed by ten years of reporting probation with special conditions, including restitution in the amount of $1,169,935.49 to victims.
In October 2019, sentencing proceeded. At the start of the sentencing hearing, defense counsel advised the court that appellant had texted her that morning at 4:00 a.m. saying that he was in the emergency room. She relayed that she had last spoken with appellant twenty minutes prior to the hearing, and she verified that he was at the hospital. The State agreed that defense counsel had verified that appellant was still at the hospital "[n]ot even an hour" ago.
The prosecutor objected to a continuation and advised the court to sentence appellant in absentia. While defense counsel had shown the prosecutor pictures showing the emergency room admission forms and stated that the defendant suffers from high blood pressure, the prosecutor argued that the timing was suspicious and "[appellant] has claimed heart issues in the past to get out of having to do things[.]" The court interjected the concern that defendants might report to the emergency room simply to get out of sentencing.
After a recess, the court noted that defense counsel had spoken with a nurse in appellant's hospital room and conveyed that appellant was "suffering an illness" and "he cannot be here." Defense counsel then argued that because appellant was involuntarily absent, the court could not proceed. Counsel acknowledged that Florida Rule of Criminal Procedure 3.180(c)(2), which deals with sentencing when the defendant is absent, does not distinguish between voluntary and involuntary absences. However, she argued that appellant had a Sixth Amendment right to be present at a critical stage of the proceedings that could not be considered waived by an involuntary absence. Based on the defense counsel's representations, the court stated, "to me that qualifies as he involuntarily absented himself."
Nevertheless, the court decided to move forward with sentencing. The prosecutor agreed that appellant had cooperated and provided truthful statements, thus complying with his plea agreement. However, the State also noted the extent of the fraud committed and how it affected some victims with whom the appellant ingratiated himself in order to steal from the victims. Therefore, the prosecutor recommended a sentence of ten years, which was in the middle of the agreed range. Defense counsel argued that appellant's contribution was more substantial, and the State's recommendation was also not reflective of the victims’ wishes, thus seeking a lesser sentence. The court then sentenced appellant to twelve years in prison with credit for time served and ten years of probation. This appeal follows.
"One of the most basic tenets of Florida law is the requirement that all proceedings affecting life, liberty, or property must be conducted according to due process, which includes a reasonable opportunity to be heard." Dunbar v. State , 89 So. 3d 901, 907 (Fla. 2012) (quoting Jackson v. State , 767 So. 2d 1156, 1159 (Fla. 2000) ). "Among a criminal defendant's most basic constitutional rights is the right rooted in the Confrontation Clause of the Sixth Amendment to be present at every critical stage of a criminal proceeding." Blair v. State , 25 So. 3d 46, 47 (Fla. 5th DCA 2009) ; see also Dunbar , 89 So. 3d at 907. Sentencing is considered a critical stage of a criminal proceeding. See Jackson v. State , 983 So. 2d 562, 575 (Fla. 2008).
Defendants may, however, waive their right to be present at a crucial stage of a criminal proceeding, including sentencing. "[D]efendants who voluntarily fail to attend their scheduled sentencing hearings may be sentenced in absentia." Capuzzo v. State , 596 So. 2d 438, 440 (Fla. 1992) (emphasis added).
In Capuzzo , a defendant voluntarily absented himself from the sentencing proceeding. Id. at 439. The court sentenced him in absentia, and the Fifth District affirmed, concluding his voluntary absence constituted a waiver of his right to be present at sentencing. Id. at 440. The supreme court agreed, finding "no reason to distinguish between a defendant's presence at sentencing and his or her presence at other crucial stages of the trial that occur prior to the return of the verdict." Id. At the time, rule 3.180 provided for conducting a trial in absentia where the defendant was voluntarily absent from trial.1 It did not include absence at sentencing.
The rule was amended in 20062 to include rule 3.180(c)(2), the provision for sentencing in absentia:
(2) Sentencing. If the defendant is present at the beginning of the trial and thereafter absents himself or herself as described in subdivision (1), or if the defendant enters a plea of guilty or no contest and thereafter absents himself or herself from sentencing, the sentencing may proceed in all respects as though the defendant were present at all times.
A committee note shows that the amendment was intended to incorporate Capuzzo ’s holding in the rule:
Rule 3.180(c), Defendant Absenting Self, is amended by adding new subdivision (2), Sentencing, which allows a court under certain circumstances to proceed with sentencing when a defendant absents himself or herself from the courtroom. The Committee proposed the amendment in response to Capuzzo v. State , 596 So. 2d 438, 439–40 (Fla. 1992) (). The present amendment addresses the issue presented by Capuzzo .
In re Amendments to the Fla. Rules of Criminal Procedure (Three Year Cycle) , 942 So. 2d 407, 408 (Fla. 2006) (first emphasis supplied). Thus, because the amendment to the rule was intended to incorporate Capuzzo ’s holding, it applies to voluntary absences, not involuntary absences.
That the rule amendment applies to voluntary and not involuntary absences is confirmed by the language of the rule itself. It deals with a defendant who "absents himself or herself," using "absent" as a verb. Merriam-Webster Dictionary defines the verb "absent" as "to keep (oneself) away" and gives as an example "[h]e absented himself from the meeting." Merriam-Webster Dictionary , https://www.merriam-webster.com/ dictionary/absent (last visited Feb. 9, 2021). More importantly, the rule applies when the defendant absents himself or herself "as described in subdivision (1)." Subsection 3.180(c)(1) applies only to a defendant voluntarily absenting himself or herself. Therefore, Florida Rule of Criminal Procedure 3.180(c)(2) also applies only to voluntary absences.
The State cites Moody v. State , 713 So. 2d 1050 (Fla. 5th DCA 1998), in support of the trial court's exercise of discretion in sentencing appellant in absentia. In Moody , the defendant filed a motion to determine competency prior to sentencing. Id. at 1050. Two doctors attempted to interview the defendant, but he thwarted their efforts, although one filed a report indicating that the defendant did not show any signs of delusion. Id. The trial judge proceeded to sentencing, stating that based on her observations the defendant was being manipulative and had voluntarily absented himself from the sentencing hearing. Id. The appellate court found no abuse of discretion in sentencing the defendant in absentia because the court could not be faulted "for refusing to permit the appellant to thwart or impede the judicial process through his own misconduct." Id.
Unlike the trial court in Moody , the trial court in this case specifically accepted the defense representation that appellant was legitimately in the emergency room with an illness, which qualified as an involuntary absence. Thus, in this case, the court sentenced a defendant who it found was involuntarily absent, unlike the trial court in Moody that sentenced a defendant whom it found was voluntarily absent.
In Wallen v. State , 932 So. 2d 493 (Fla. 4th DCA 2006), a defendant sought reversal of his sentence because the court erred in sentencing him while he was involuntarily absent due to an arrest in another state. Id. at 493. We affirmed on the basis that the defendant did not prove his absence was voluntary, of which he bore the burden. Id. Similarly, the court in Jackson v. State , 144 So. 3d 658 (Fla. 2d...
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