Summerall v. State, 91-761
| Decision Date | 22 October 1991 |
| Docket Number | No. 91-761,91-761 |
| Citation | 588 So.2d 31 |
| Parties | Jeffrey SUMMERALL, Appellant, v. The STATE of Florida, Appellee. 588 So.2d 31, 16 Fla. L. Week. D2719 |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Carol J.Y. Wilson, and N. Joseph Durant, Asst. Public Defenders, for appellant.
Robert A. Butterworth, Atty. Gen., and Michael J. Neimand, and Linda Katz, Asst. Attys. Gen., and Eric Bruce, Certified Legal Intern, for appellee.
Before HUBBART, COPE and GODERICH, JJ.
This is an appeal by the defendant Jeffrey Summerall from a final order revoking the defendant's probation. We reverse.
The testimony at the probation revocation hearing was received over the course of three days from December 19, 1988 to January 12, 1989; the defendant was present with counsel during each of these proceedings. On January 13, 1989, the trial court heard argument of counsel, found the defendant in violation of his probation, and signed sentencing orders imposing a total of nine years imprisonment; the defendant, who was in the county jail during all of the proceedings below, was not brought to court for this hearing, but was represented by counsel. Thereafter, on March 30, 1989, a further hearing was conducted, with the defendant and his counsel present, at which the trial court orally announced the sentence which was previously filed on January 13, 1989.
We conclude that the defendant was denied his constitutional right to be present in court during a critical stage of the proceedings below, namely, the January 13, 1989 hearing at which the trial court (a) heard argument of counsel on whether the subject probation should be revoked, (b) found the defendant in violation of probation, and (c) signed sentencing orders imposing a total of nine years imprisonment. Without question, the pronouncement of a verdict and sentence in a criminal trial or probation revocation hearing is a critical stage of the proceedings at which the defendant is entitled to be present, absent a voluntary waiver of same by the defendant. See Francis v. State, 413 So.2d 1175 (Fla.1982); Quaterman v. State, 506 So.2d 50, 52 (Fla. 2d DCA 1987), approved, 527 So.2d 1380 (Fla.1988); Fla.R.Crim.P. 3.180(a)(8), (9). Contrary to the state's argument, we find no such waiver in this case. Indeed, the defendant had filed a pro se motion prior to the probation revocation hearing in which he requested permission to be present at all critical stages of his probation revocation...
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...stage of the proceedings because no interpreter was present. We agree and reverse and remand on that basis. In Summerall v. State, 588 So.2d 31, 32 (Fla. 3d DCA 1991), we observed that “[w]ithout question, the pronouncement of a verdict and sentence in a ... probation revocation hearing is ......
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