NIPPER

v.

STATE OF FLORIDA

TANENBAUM, J. Mathew Nipper stands convicted of two felonies following a jury trial: burglary of a dwelling and battery on an elderly person. The convictions earned him a mandatory life sentence as a prison-releasee-reoffender on the burglary conviction and a five-year concurrent prison term for the battery. He appeals, raising three issues. We write to address but one: the trial court’s decision to allow the first day of trial to proceed—the State’s entire case-in-chief—in Nipper’s absence. As we explain, the trial court incorrectly concluded that Nipper had absented himself voluntarily—and thereby had given up his right to be present— based on his drug and alcohol overdose the night before. We reverse and order a new trial.

I After being charged, Nipper pleaded not guilty and made bail, so he was out pending trial. He was present in the courtroom for jury selection, which occurred on a Monday. Days earlier, Nipper’s newly hired counsel had requested a continuance, contending he had just gotten into the case and deposed the victim, who gave “wishy-washy” and conflicting answers that needed to be addressed. That request was denied.

The jury having been selected and sworn, opening statements would commence that coming Thursday at 8:30 a.m., which the parties acknowledged. The court called the case Thursday about 8:45 a.m., and Nipper’s counsel was present in the courtroom; Nipper was not. The court asked counsel about his client’s whereabouts. To this, counsel replied that he had just come from visiting Nipper at the hospital, Nipper having been admitted there earlier in the morning. Nipper did “not look good,” according to his counsel. The lawyer’s understanding was that Nipper had been “taken there by ambulance last night.” Counsel continued: “Obviously I don’t have a great deal of information as I only found out about this [at] 6:45-ish and went over to the hospital, saw him, and came here.” The court questioned whether “this [was] a physical ailment,” or whether it was “[h]im trying to force a continuance by any means possible.” The State responded it was ready to proceed with the trial: My witnesses are here. As far as I’m concerned, the Defendant’s made himself unavailable. This is not the first attempt to try to get a continuance. This case has been pending for two years. . . . There was [sic] a couple more attempts at a continuance. Seems like this is a last ditch effort. I’ve tried to get information about what exactly happened. Nobody is telling me anything. There’s no witness here to talk about what exactly happened. It’s the State’s position that it was likely voluntary and he just doesn’t want to be here, so . . . . As far as the State’s concerned, he has made himself unavailable and we’re ready to go.

The trial court responded, “Makes a hell of an issue for appeal.”

The trial court continued: It’s unfortunate to have to start a trial without the Defendant, but ultimately if he has voluntarily absented himself from the proceedings, we’re going to move forward. . . . Again, this is no different than a person who runs in the middle of a trial as opposed to now. It’s looking like he’s running from the beginning of the trial. Nipper’s counsel protested: Well, Your Honor, there would be no way to defend this case without his testimony and . . . I’d say we have no information as to what caused this, so . . . this would be the same as if he were arrested. He’s in the hospital, he can’t come here, he’s not physically able to make it here, so therefore I would ask that we continue this to a later date. (emphasis supplied).

The trial court gave counsel fifteen minutes “to see if you can find any additional information before a ruling needs to be made. From there, we’re moving on.” When Nipper’s counsel returned to the courtroom, he had Christina Jenkins, “a really good friend” of Nipper’s, on the phone. She explained that Nipper had shown up at her house the night before, very nervous about the trial, and he apparently “had been drinking a little bit . . . and he showed up at my door.” She had not been expecting him, and she was on her way out to get a couch. “He was drinking. I told him not to drive. I said, do not drive, just rest here, I’ll be back.” Jenkins got lost while out looking for the couch and did not return home for two hours. When she entered her house, Jenkins “heard gasping” and found Nipper “dead on my floor in front of my bathroom, completely blue and dead.” She attempted CPR and called 911. Police and emergency personnel responded, and Nipper was taken by ambulance to the hospital. Jenkins followed and was “up all night” there: “I just left the hospital just now and I was going to head straight to the courthouse once I heard . . . you all needed to hear from me.” Jenkins explained that Nipper was admitted and was “sick” and “not doing well. He’s okay, he’s alive,

and that’s all that matters to me.” She noted that Nipper was “not skipping out on Court or anything like that, he truly was just nervous, and then he – I don’t know what happened.” The trial court then queried whether Nipper was “capable of discharging himself.” His counsel responded, “[B]ased upon my observation of him this morning, no, he was not remotely able to get out of bed. I don’t think he’ll be getting out of bed for a while.” The court asked whether someone from the hospital could confirm that, and counsel said he had provided the court all the information the hospital would release to him. The prosecutor then remarked: [S]omebody needs to go up to the hospital. I mean, the burden’s on the Defense to show that this wasn’t voluntary. Everything the witness just stated sounds very voluntary to me. He was nervous about coming to trial, got drunk, probably passed out, but it sounds like he’s okay and he’s alive and well, so he needs to get here. I’m not trying to sound heartless, but I recognize what he’s facing, and he knows what he’s facing, and it’s hard to think that this was anything other than just an attempt to not have to be here based on what she just told us. Nipper’s counsel retorted that the conduct instead violated his pre-trial release conditions and constituted a failure to appear. The consequence for that, counsel explained, was revocation of Nipper’s bail and commitment of him to jail to await trial after being discharged from the hospital. Counsel again noted his need for Nipper’s testimony, which at the time would not be available because of the hospitalization. A key fact here, one that we will come back to shortly, is the following: The trial court gave Nipper’s counsel one hour to determine whether Nipper could be discharged from the hospital, but it remarked that the situation was “highly unusual,” given the prior continuance requests that the court had denied. Counsel protested that “there’s no way I can get him here in an hour.” At that point, the court reassured counsel, “No, or at least confirm from the hospital that he cannot leave the hospital, and from there we’ll pick a time when the trial can start with the jury that has been picked and sworn.” (emphasis supplied).

The court clarified further: “If he’s awake, he can otherwise give whatever limited release as necessary to demonstrate what the condition is and whether he is even capable of standing trial today or if the date needs to be continued, but we’re going to need more information than what the friend has provided.” (emphasis supplied).

Nipper’s counsel returned with a hospital record that had the phone number for the nurses’ station. The court called and got on the line with a nurse, who explained that Nipper had not been released by the attending doctors for discharge. The court asked if Nipper was admitted for drugs or alcohol, and the nurse explained that Nipper’s diagnosis on admission was aphasia, or difficulty breathing. The nurse also disclosed to the court that Nipper had “several orders listed” for the nurses to conduct “CO protocols,” which would be “for alcohol.” She also explained that Nipper was “on aspiration precautions.” Upon further query from the State, the nurse clarified that Nipper could not be discharged because a doctor had not yet cleared him for that, but that Nipper “just arrived to us at four something this morning, so the doctor may not have rounded on him yet. . . . He was seen in the ER, but the doctor for this morning has not rounded.” In support of a continuance, Nipper’s counsel pointed out that Nipper’s situation was like that found in a decision out of the Fourth District Court of Appeal, Reynolds v. State, 313 So. 3d 129 (Fla. 4th DCA 2021).

In that case, the defendant was in the hospital, bedridden while awaiting surgery, and thus absent from his sentencing hearing.

The court reversed and remanded for a new sentencing hearing because the trial court had proceeded without the defendant even though the absence was involuntary. The prosecutor responded by pointing to the computer-aided dispatch (“CAD”) notes from police, which detailed the events that had occurred a few hours earlier: Nipper was unconscious and turned blue; CPR was performed; EMS administered Narcan twice; Nipper had a pulse but presented with agonal¹ breathing; and Nipper tested positive for methamphetamine. Additional notes from the hospital records revealed that Nipper “was admitted after apparent unintentional overdose,” “has an acute kidney injury,” “has changes on his EKG,” and is “currently undergoing cardiac evaluation.” (emphasis supplied).

The prosecutor and Nipper’s counsel had differing takes on these facts. The prosecutor focused on what she perceived to be Nipper’s bad choices that resulted in his absence: “Yes, he had trouble breathing because he got drunk and took drugs the morning of his trial so that he did not have to be here. I don’t know that there’s anything that’s not voluntary about making those two choices knowing what I guess is awaiting you, in his mind at least.” Nipper’s counsel, by contrast, zeroed in on the inescapable fact that Nipper was in the hospital and “whatever the basis, if male [sic] is turning blue, possible drug overdose, this does not seem like something where he’s going to be able to be here this morning.” Even though the trial court originally had merely sought proof that Nipper physically was incapable of appearing in court—again, having told counsel of the need to “at least confirm from the hospital that [Nipper] cannot leave”—the court relied on Nipper’s “voluntary choice to consume alcohol or drugs” to find that the resulting hospitalization was akin to a voluntary absence, focusing on the voluntariness of the conduct that led to the absence rather than the voluntariness of the actual absence.

The trial court explained: Mr. Nipper was aware that trial was going to start today as he had sat through jury selection on Monday, and also was aware previously from the denial of the continuances that trial was going to occur today. I am going to find his absence is voluntary and we will proceed today with trial. Should he be discharged, he is to come here and obviously participate in the trial, but trial is going to continue per the rule as if the Defendant were present. Let’s go ahead

and bring in the jurors, we’ll go through preliminary instructions, and then start with the testimony. (emphasis supplied).

There was no evidence that Nipper overdosed in order to stop the trial, and the trial court made no such explicit determination. After going through preliminaries for the remainder of the morning and before breaking for lunch, the court noted for counsel that the State’s first witness will go on in the afternoon when they return, confirmed with the State that it expects to finish its case by the end of the day, and reminded counsel that “if your client is discharged, he does need to be here when we start at 1:15.” Following the break, but before the State put on its first witness, Nipper’s counsel announced that he had “a medical update. I have documentation from the hospital”: Patient was admitted after apparent unintentional overdose. He received CPR in the field before arriving to the hospital. Acute kidney injury and changes on his EKG. He is therefore currently undergoing a cardiac evaluation. The patient is not medically cleared to leave the hospital. He is undergoing additional testing for the above-issues. (emphasis supplied).

The prosecutor remained unmoved by the circumstances: “I think the court’s prior ruling still stands. It doesn’t change how he got himself in this situation to begin with and why he got himself in the situation.” (emphasis supplied).

The trial court appeared to agree, again focusing on the voluntariness of the conduct that preceded the hospitalization, rather than the voluntariness of the hospitalization: Again, so the ruling is clear at this stage, Mr. Nipper was present for jury selection with Judge Hankinson on Monday, and that date – let me make sure I have it correct – that date was Monday, April 18th. Mr. Nipper was aware of the trial date being today, which is Thursday. On Wednesday evening, through voluntary means, he consumed alcohol and drugs leading to the situation where he is now in the hospital unfortunately;

however, I am going to find that he voluntarily absented himself from the proceedings. (emphasis supplied).

In one last effort to stop the trial from proceeding without his client, counsel made the following argument: If I were to go mountain climbing and fall and break my arm the day before trial, I would say that is not voluntarily me not showing up. The fact is, we have documentation showing that it was an involuntary overdose, and regardless of that, we have documentation showing that the hospital is saying he is not cleared to be released. Client has a right to be present at all stages. I would say going forth is – abrogates his Sixth and Fourteenth Amendment rights, and that the Defendant’s waiver of presence must be knowing, intelligent, and voluntary. He very much wants to be here for this trial, he’s not able to be released from the hospital on that grounds in what we have seen right there, and I would ask the Judge to reconsider. (emphasis supplied).

The trial court responded: “The objection is noted; however, you’re equating an accident while exercising to consuming alcohol and drugs, Mr. Stevenson?” This last response from the trial court brings into finer focus what all the emphases added to the preceding transcript excerpts highlight: that—in allowing the State to present its case to the jury while Nipper was not there—at the heart of the trial court’s decision was not whether Nipper could leave the hospital and come to the trial (the evidence showing he could not, a fact repeatedly acknowledged by the trial court), or even whether the overdose was intentional to avoid trial (again, the only evidence indicating to the contrary); but the acceptability of the conduct that led to the hospitalization. That is, the trial court concluded Nipper was “voluntarily absent[]” based on the voluntariness of the illicit conduct that set in motion the events leading to Nipper’s involuntary absence from trial.

The trial commenced without Nipper. The State presented its case, calling the responding officer, the officer’s partner, the victim of the battery, and the victim’s roommate. Nipper’s counsel cross-examined each witness presented by the State. At the conclusion of the State’s case, the court told the jury that the trial would break for the day. After the jury left, the court remarked, “Tomorrow morning when we resume hopefully Mr. Nipper is discharged so he has his opportunity to testify if he’s going to be available.” (emphasis supplied).

The next morning, Nipper and his counsel appeared at trial, and counsel gave to the court hospital documents showing Nipper had left the hospital “against medical advice,” at the direction of counsel, because “no matter what the medical situation is, it’s actually more important he be here for this. So he is here this morning.” Counsel asked, though, if Nipper could “return himself to the hospital, as they were not remotely happy about him leaving. I believe the documentation I provided you says there are kidney and cardiac issues.” Rather than engage in a colloquy with Nipper about whether he had consented to the trial going forward without him the day before, the trial court clarified that the “discharge against medical advice” meant that the hospital staff thought Nipper “should just stay and not leave the hospital?” Counsel responded: Exactly. . . . The doctor did see him after we talked to the nurse’s station at 10:00 but I guess before¹:00. . . . They say he has the issues that they list. . . . They were very not happy about him leaving, but I made clear to them, this is actually going to be more important to his well-being to testify. . . . [A]nd they said, we want you to check yourself back in . . . . [W]e want him to check himself back into the ER as soon as possible. The court then remarked: “[A]ny issues that were either respiratory or kidney based were brought by the voluntary consumption of the substances on Wednesday night, that’s correct?” (emphasis supplied).

Nipper presented his case and testified on his own behalf; he also called the owner of the mobile home that the victim was renting at the time. At the end of Nipper’s presentation, his counsel restated his request to have Nipper return to the emergency room, as directed by hospital staff. The court asked Nipper if he understood that the trial would continue regardless, and Nipper said he understood. The court explained to Nipper that it was revoking his bail, but he could “go to the hospital to get the care that you need. The deputies will escort you to the hospital. Once you are released, you’re in custody.” Nipper’s counsel then renewed his objection to the finding of Nipper’s voluntary absence on the first day of trial, but he explained that he was not objecting to any finding of voluntary absence on the second day.

The jury found Nipper guilty of burglary as charged; it specifically found that during the burglary, he committed an assault and a battery in a dwelling.

The jury also found Nipper guilty of battery on a person sixty-five years or older. The court adjudicated Nipper guilty and sentenced him to life. Nipper moved for a new trial and argued, in part, that the court should not have proceeded with the trial on day one while Nipper was in the hospital. The court denied the motion. II The argument that carries the day for Nipper concerns the trial court’s allowing the State’s case-in-chief to proceed without Nipper’s being there in court. According to Nipper, the trial court’s decision violated his Sixth and Fourteenth Amendment rights to be present at every critical stage of the criminal proceedings against him. He contends that he was denied both his right to confront his witnesses and his right to due process when the trial court let the State go forward to prove its case against Nipper in his absence.

We agree. Nipper’s conduct—occurring outside the courtroom, without any demonstrated intent to disrupt the proceeding—did not operate as a waiver or forfeiture of these fundamental rights. A “[T]rial by jury is a fundamental guaranty of the rights and liberties of the people.” Hodges v. Easton, 106 U.S. 408, 412 (1882); see U.S. CONST. amend. VI; Art. I, § 16, Fla. Const.; cf. Art. I, § 22, Fla. Const. (“The right of trial by jury shall be secure to all and remain inviolate.”); Dimick v. Schiedt, 293 U.S. 474, 485–86 (1935) (noting that the “right of trial by jury is of ancient origin, characterized by Blackstone as ‘the glory of the English law’ and ‘the most transcendent privilege which any subject can enjoy,’” such that “any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care” (internal citation omitted)).

Indeed, one of the original grievances set forth in the Declaration of Independence was the deprivation of “the benefits of Trial by Jury.” THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

Essential to a fair trial is the “fundamental right” of a criminal defendant “to confront the witnesses against him,” such that the right “is made obligatory on the States by the Fourteenth Amendment.” Pointer v. Texas, 380 U.S. 400, 403 (1965).

And “[o]ne of the most basic of the rights” that constitute the right to confrontation “is the accused’s right to be present in the courtroom at every stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338 (1970); see Muhammad v. State, 782 So. 2d 343, 351 (Fla. 2001) (“Criminal defendants have a due process right to be physically present in all critical stages of trial . . . .”); Godwin v. State, 501 So. 2d 154, 155 (Fla. 1st DCA 1987) (“The defendant has a right to be present at all critical stages of his trial including jury selection.”); see also Boykin v. Alabama, 395 U.S. 238, 243 (1969) (noting that the right to be present is a federal constitutional right).

A defendant, though, “may waive constitutional rights.” Blair v. State, 698 So. 2d 1210, 1213 (Fla. 1997); see also Tucker v. State, 559 So. 2d 218, 219 (Fla. 1990) (“[E]ven fundamental constitutional rights can be waived when a defendant so chooses.”); cf. Boykin, 395 U.S. at 242–43 (explaining how a guilty plea waives several constitutional rights and describing what is required before the waiver can be valid). “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (emphasis supplied).

For a waiver of a constitutional right to be valid, it “not only must be voluntary but must be [a] knowing, intelligent act[] done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970); see Tucker, 559 So. 2d at 219 (“An effective waiver of a constitutional right must be voluntary, knowing, and intelligent.”).

“The determination of whether there has been an intelligent waiver of [a constitutional right] must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson, 304 U.S. at 464. This determination is “governed by federal standards,” and under federal standards, waiver will not be presumed “from a silent record.” Boykin, 395 U.S. at 242−43 (requiring that the record show that the defendant was made aware of the constitutional right and he “intelligently and understandingly rejected” taking advantage of it; stating “[a]nything less is not waiver”) (citation omitted); see also Chames v. DeMayo, 972 So. 2d 850, 860–61 (Fla. 2007) (noting the “detailed colloquy judges must recite to confirm that the defendant knows the consequences of pleading guilty instead of going to trial” or to confirm the waiver by a party of other constitutional rights); Fla. R. Crim. P. 3.180(b)(2) (providing for “waive[r of] physical attendance in writing or on the record” as long as “the court accepts the waiver”).

While a waiver typically will occur expressly, through a party’s words, it also may be “inferred from conduct or acts.” Rader v. Prather, 130 So. 15, 17 (Fla. 1930).

Even so, the United States Supreme Court has warned that courts are to indulge “every reasonable presumption against waiver” of fundamental rights. Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937); Brookhart v. Janis, 384 U.S.¹, 4 (1966) (noting a “presumption against the waiver of constitutional rights” and need for an “effective” waiver to “be clearly established”).

In turn, before waiver can be inferred, “[i]t is necessary that the acts, conduct, or circumstance relied upon to show waiver [] make out a clear case.” Masser v. London Operating Co., 145 So. 79, 84 (Fla. 1932) (equating “waived” with “intentionally relinquished”).

For this reason, when the United States Supreme Court and our supreme court have found a waiver of the right to be present at trial because a defendant voluntarily had absented himself from a proceeding, they did so after demonstration in the record that the defendant both knew of his right to be present and intentionally chose to give up that right. Cf. Diaz v. United States, 223 U.S. 442, 453, 455 (1912) (basing determination on fact that defendant “sent to the court a message expressly consenting that the trial proceed in his absence, which was done”); Israel v. State, 837 So. 2d 381, 387 (Fla. 2002) (finding that voluntary absence was waiver, but only after the trial court repeatedly questioned the defendant on the record about his decision to ensure his awareness of this right to be present).

The analysis in Israel v. State in fact illuminates the colloquy necessary for the trial court to confirm that a defendant’s absence is truly a waiver, a colloquy that informs the defendant of the right and the consequences of giving up that right, one that ensures that the defendant is intelligently relinquishing that known legal right. See 837 So. 2d at 386–87. Indeed, the supreme court’s keying in on the necessity of express voluntariness to support waiver can be seen in the following excerpt: [T]he record shows that Israel voluntarily chose to remain outside the courtroom in his holding cell for most of Monday and all of Tuesday as trial proceedings continued. After Israel asked to be taken to his holding cell on Monday, the trial court questioned him on the record about his decision, recommending to Israel that he remain in the courtroom and assuring him that he would be welcome back at any time. Likewise on Tuesday, the trial court questioned Israel to determine whether he wished to come into the courtroom but Israel refused to answer.

The trial court made a conscientious effort to ensure that Israel was aware of his right to be present, and made it very clear to both defense counsel and Israel that Israel could rejoin the proceedings at any time.

We find that because Israel’s absence from the courtroom was voluntary, he waived his right to be present during jury selection on Tuesday.

The trial court did not err in conducting jury selection while Israel chose to remain in his holding cell. Id. at 387 (emphases supplied). No such colloquy took place between the trial court and Nipper about his absence during the State’s presentation of its case—even after the fact, when Nipper appeared in court for the second day of trial—to determine whether Nipper had intended to waive his right to be present. Cf. Ohio Bell Tel. Co. v. Pub. Utils.

Comm’n of Ohio, 301 U.S. 292, 307 (1937) (“As there was no warning of such a course, so also there was no consent to it. We do not presume acquiescence in the loss of fundamental rights.”).

Rather than engage Nipper directly while he was in the courtroom, the trial court—after his counsel had just explained that Nipper left the hospital “against [] medical advice” and medical staff “want[ed] him to check himself back into the ER as soon as possible”—told Nipper, “You don’t have to speak.” Nothing in the record supports a determination that Nipper effected a waiver of his right to be present during the State’s presentation of evidence against him. B Procedural forfeiture also could provide a basis for the trial court’s allowing the State to proceed without Nipper. Courts oftentimes use the terms “waive” and “forfeit” interchangeably, but forfeiture is something different. See Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 895 n.2 (1991) (Scalia, J., concurring in part) (noting how the Supreme Court “uses the term ‘waive’ instead of ‘forfeit’ . . . so often . . . interchangeably” but explaining how the “two are really not the same”).

Forfeiture “occurs by operation of law without regard to the defendant’s state of mind”— sometimes as a consequence for a procedural default, sometimes as a penalty for failing to hew to some procedural or substantive requirement. Peter Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 MICH.

L. REV. 1214, 1214, 1238–39 & n.50 (Apr.–May 1977) (examining Supreme Court decisions regarding the effect of a guilty plea on the ability to raise constitutional defenses later, including those that the defendant was unaware of when he entered a plea; and, in that context, explaining why a plea constitutes a forfeiture by operation of law rather than a waiver); see generally Fay v. Noia, 372 U.S. 391, 426 (1963) (discussing the concept of forfeiture by procedural default, regardless of intent).

Procedural forfeiture can be found when a party misses a jurisdictional deadline, or when a party fails to raise a constitutional objection at trial or make an argument in the initial brief on appeal. See, e.g., Yakus v. United States, 321 U.S. 414, 444 (1944) (“No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make [a] timely assertion of the right before a tribunal having jurisdiction to determine it.”); Donin v. Goss, 69 So. 2d 316, 318 (Fla. 1954) (“Unless an appeal is taken within the prescribed time, this Court has no jurisdiction whatever.”); State ex rel. Copeland v. Mayo, 87 So. 2d 501, 503 (Fla. 1956) (“Since the point now presented has not been previously raised, despite ample opportunity to do so, under well settled rules of decisions, we are driven to the conclusion that he has waived or forfeited the right to raise it.”); cf. Freytag, 501 U.S. at 894–95 (Scalia, J., concurring in part) (positing that procedural forfeiture “is essential to the orderly administration of justice” (internal quotation and citation omitted)).

Forfeiture of a constitutional right also may be found as a response to a party’s abuse of the judicial process. See, e.g., State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999) (characterizing the pro se “filing [of] repetitious and frivolous pleadings” as “diminishing the ability of the courts to devote their finite resources to the consideration of legitimate claims,” such that a court may find a forfeiture of the right to further pro se access in order to prevent the abuse, provided a court first gives the party “notice and an opportunity to respond”); Clark v. Baney, 355 So. 3d 976, 979 (Fla. 1st DCA 2023) (approving trial court’s “sanctioning [of] a chronically abusive pro se litigant” by barring further pro-se court filings; recognizing that pro-se litigant’s “egregious conduct”— which undermine[d] the court’s ability to fulfill its constitutional duties—“forfeited his right to proceed without counsel”); see generally Sibley v. Fla. Jud. Qualifications Comm’n, 973 So. 2d 425, 426 (Fla. 2006) (“This Court and the United States Supreme Court have, when deemed necessary, exercised the inherent judicial authority to sanction an abusive litigant.”).

Abuse or disruption of the judicial process—warranting forfeiture of a constitutional right—can occur with respect to the trial itself. See Allen, 397 at 338 (framing the question before the Court as “whether an accused can claim the benefit of this [“most basic”] constitutional right to remain in the courtroom while at the same time he engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial”; answering in the negative); Davis v. Washington, 547 U.S. 813, 833 (2006) (“[O]ne who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.”); see also Westen, Away from Waiver, 75 MICH.

L. REV. at 1239 n.50 (discussing—in the context of a broader examination of Supreme Court decisions on waiver of constitutional defenses through pleas—Illinois v. Allen and idea of forfeiture by misconduct, such that despite his desire to remain in the courtroom, in the face of his misconduct, the defendant’s “constitutional right to be present [in the courtroom during trial] was outweighed by the state’s overriding interest in being able to proceed with the trial in an orderly fashion”; making the forfeiture a “penalty for violating certain obligations or conditions,” rather than a function of the defendant’s agreeing or intentionally relinquishing the right to be present (citing Y. KAMISAR, W. LAFAVE & J. ISRAEL, MODERN CRIMINAL PROCEDURE 1345 (4th ed. 1974) and quoting Y. Kamisar, Memorandum on Uniform Rules of Criminal Procedure 5–6 (April 1972))).

Allen demonstrates how disruption of the trial can work a forfeiture of the right to be present, the Court therein holding that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Allen, 397 U.S. at 343; but see id. (noting that the lost right to be present can “be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings”).

According to the Court, “[i]t is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country.” Id. Courts, in turn, “must be given the discretion to meet the circumstances of each case” in which a judge is “confronted with disruptive, contumacious, stubbornly defiant defendants.” Id.2

It is not simply to impose a punishment for misconduct or wrongdoing occurring outside the courtroom. Cf. Jackson v. Fla. Dep’t of Corr., 790 So. 2d 398, 401 (Fla. 2001) (“Clearly, when a court sanctions a litigant for actions committed in its court, it is not charging or convicting the person of a violation of criminal or civil laws, it is merely enforcing its judicial authority.”).

To find a forfeiture, then, the trial court must determine that the wrongdoing was directed at disrupting the trial—which is more than the disruption of the trial being a mere consequence of the wrongdoing. Cf. Giles, 554 U.S. at 359–60 (explaining that the common-law forfeiture rule “applied only when the defendant engaged in conduct designed to prevent the witness from testifying”); id. at 368 (noting that the forfeiture rule at common law did not apply to allow testimony of murder victim when the defendant “was not shown to have done so for the purpose of preventing testimony”).

If it were the latter (the disruption happening to be the coincidental result of out-of-court misconduct), the court would be punishing the defendant for uncharged and untried conduct. Cf. Hodges, 106 U.S. at 412 (“That right [to a jury trial] could have been waived, but it could not be taken from them by the court.”); Giles, 554 U.S. at 365 (“The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury. It is akin, one might say, to dispensing with jury trial because a defendant is obviously guilty.” (internal quotation and citation omitted)).

The record is clear that the trial court in this case did not deem Nipper’s absence a forfeiture in order “to protect the integrity of” the trial but as a sanction for engaging in wrongful conduct that coincidentally impacted the proceeding. Before the trial court could find a forfeiture, however, it would have had to find that Nipper’s particular and appropriate concerns of this trial judge who was, at the end of the trial, confronted with an obstreperous defendant intent on manufacturing a mistrial”).

wrongdoing was directed at the trial proceeding with the intent to disrupt it. Cf. Reynolds v. United States, 98 U.S. 145, 158–59 (1878) (explaining that when a defendant has “corruptly kept away” from trial a witness against him, the “Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts” directed at the proceeding); Davis, 547 U.S. at 833 (noting that defendants “have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system,” so a defendant’s wrongfully obtaining the absence of a witness “forfeits [his] constitutional right to confrontation”); Giles, 554 U.S. at 359–62 (emphasizing that the “forfeiture by wrongdoing” rule is limited to conduct “designed” to disrupt the trial proceeding and does not apply to conduct that incidentally disrupts or interferes with the proceeding).

When a defendant, like Nipper, “was at large on bail, was present when the trial was begun . . . and then fled the jurisdiction,” at trial then being “called and defaulted,” the trial may proceed in his absence, the absence at that point permissibly treated as a forfeiture. Diaz, 223 U.S. at 457 (internal quotation and citation omitted); cf. Fla. R. Crim. P. 3.180(c)(1) (allowing for trial to proceed in the absence of the defendant if “the defendant is present at the beginning of the trial and thereafter, during the progress of the trial or before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the court without leave of court, or is removed from the presence of the court because of his or her disruptive conduct during the trial”); Daniels v. State, 587 So. 2d 460, 461 (Fla. 1991) (holding that under Florida Rule of Criminal Procedure 3.180(b), “if a defendant voluntarily absents himself from trial after the commencement of jury selection, that defendant cannot complain of the continuation of his trial to conclusion”).

The Supreme Court set out the following rationale for forfeiture in these situations: It does not seem to us to be consonant with the dictates of common sense that an accused person, being at large upon bail, should be at liberty, whenever he pleased, to withdraw himself from the courts of his country and to break up a trial already commenced. The practical result of such a proposition, if allowed to be law, would be to prevent any trial whatever until the accused person himself should be pleased to permit it. Diaz, 223 U.S. at 457 (internal quotation and citation omitted).

Put simply, when a defendant is out on bail, knows when the trial is scheduled to start, and “absconds” or otherwise chooses to be a no-show, the trial court can find a forfeiture to avoid allowing the defendant to “with impunity defy the processes of that law, paralyze the proceedings of courts and juries, and turn them into a solemn farce.” Id. at 457–58; accord State v. Melendez, 244 So. 2d 137, 139 (Fla. 1971) (holding that “where a defendant absents himself during his trial, with knowledge that his trial is underway, his absence shall not be permitted to interrupt the proceedings”; noting that “[t]he orderly administration of criminal justice and the protection of society require that a trial, otherwise valid, should not be aborted by a defendant’s voluntary nonparticipation” (emphasis supplied)); Capuzzo v. State, 596 So. 2d 438, 440 (Fla. 1992) (explaining that, consistent with the rationale of Florida Rule of Criminal Procedure 3.180, a “defendant cannot claim lack of an express waiver” under circumstances in which he “absents himself or herself by fleeing the court’s jurisdiction”).

Nipper “was present in court . . . when the jury was impaneled and sworn,” and “he was out on bail and hence entitled to come and go as he pleased,” so his absence from the courtroom at the start of the State’s case properly was presumed to be voluntary, the burden then falling “upon him to show the contrary.” Mulvey v. State, 41 So. 2d 156, 157 (Fla. 1949).

To avoid forfeiture of his right to be present, Nipper could “not remain silent” and later “take advantage of [his absence] to vitiate the trial.” Id. at 157–58 (noting that the criminal defendant “made no attempt to explain the reason for his absence, either in his motion for new trial or when . . . he was brought into open court” and “[i]ndeed, to this very day no claim or showing has been made by him that his absence from the courtroom was other than voluntary”; characterizing as “manifestly untenable” the defendant’s approach of avoiding any explanation for his absence and instead electing “to stand on the naked ground that his mere absence from the courtroom under whatever circumstances operated to stalemate the proceedings and render any further steps taken in his absence completely nugatory and void”).

Far from remaining silent on the matter, Nipper’s counsel provided ample explanation—through a witness who found Nipper unresponsive and an attending nurse who could speak to Nipper’s current medical status in the hospital—for why he was not present in court: He was in the hospital for a medical emergency and had not been discharged. In fact, the trial court received the documented explanation it had originally requested.

We agree with the conclusions reached by the Second and Fourth Districts in similar situations, involving a defendant’s absence from a trial or sentencing proceeding because of a demonstrated hospitalization: Unless the State can show the hospitalization is a ruse by the defendant to interfere with the proceeding, the resultant absence from the proceeding is not voluntary and does not support a forfeiture of the fundamental right to be present. See Miller v. State, 833 So. 2d 318 (Fla. 2d DCA 2003); Reynolds v. State, 313 So. 3d 129 (Fla. 4th DCA 2021).

In Nipper’s case, the State failed to proffer any evidence that he purposely overdosed to get admitted to the hospital and stop the trial. The most that can be inferred from what was presented to the trial court is that Nipper engaged in terribly reckless behavior that nearly killed him—but fortunately did not. The behavior undoubtedly was a violation of the conditions of Nipper’s pre-trial release, and the trial court appropriately sanctioned Nipper by revoking that release. But the trial court erred when it relied on the voluntariness of Nipper’s misconduct—without more—as a substitute for the clear involuntariness of his absence to find, essentially, a “forfeiture by wrongdoing.”3 The judicially developed forfeiture doctrine does not extend this far. 3 The dissent asserts that the circumstances here are analogous to those addressed by the supreme court in Dufour v. State, 495 So. 2d 154 (Fla. 1986).

All we know of those facts, however, comes from the following sentence in that capital appeal: “[W]e agree with the state that appellant voluntarily absented himself from the proceeding within the terms of Florida Rule of Criminal Procedure 3.180(b) by embarking on a ‘hunger strike’ culminating in his hospitalization during the [pretrial] hearing.” Dufour, 495 So. 2d at 161 (Fla. 1986).

We fairly can infer from III Even though we have found error, we still must determine whether it was “harmless.” See § 924.33, Fla. Stat. (precluding reversal “unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant”); State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (“The harmless error test, as set forth in Chapman and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”); Goodwin v. State, 751 So. 2d 537, 545 (Fla. 1999) (“Whether or not counsel are helpful, it is still the responsibility of the court, once it concludes that there was error, to determine whether the error affected the judgment.”).

We note that the supreme court has not treated error like what we have here as per se reversible. See Francis v. State, 413 So. 2d 1175, 1178 (Fla. 1982) (applying harmless-error analysis to trial court’s erroneously allowing jury selection to proceed in the defendant’s absence); Garcia v. State, 492 So. 2d 360, 363–64 (Fla. 1986) (applying harmless error analysis to trial court’s erroneously proceeding with substantive motion hearing without the defendant’s being present).

The State offers nothing in the way of a proffer on how Nipper’s absence during the whole of its case-in-chief did not “frustrate[] the fairness of the proceeding.” Garcia, 492 So. 2d at 363. On these facts, we cannot say beyond a doubt that Nipper’s absence during the presentation to the jury of the State’s entire case against him did not vitiate the fairness of both the trial proceeding and the judgment of conviction it produced. See Goodwin, 751 So. 2d at 545–46 (highlighting the importance of an appellate court exercising judgment in determining whether error rises to the level of being reversible); Kotteakos v. United States,

there that the hunger strike was directed at disrupting the proceeding. There was nothing before the trial court in this case demonstrating that Nipper’s conduct similarly was directed at disrupting his trial.

328 U.S. 750, 759–60 (1946) (explaining that the objective of harmless-error statutes is “to substitute judgment for automatic application of rules” and “to preserve review as a check upon arbitrary action and essential unfairness in trials”); see also State v. Clark, 614 So. 2d 453, 454 (Fla. 1992) (under harmless-error analysis, the appellate court is to look to the effect of the error “on the underlying fairness of the trial,” while ignoring “the virtually inevitable presence of immaterial error” (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986))); DiGuilio, 491 So. 2d at 1135 (noting that any assessment of whether an error supports reversal must be rooted in a “concern[] with the due process right to a fair trial”).

We certainly cannot “assess the extent of prejudice, if any, [Nipper] sustained by not being present to consult with his counsel during the time” all the State’s witnesses testified against him and the time his counsel then had to cross-examine them, so we conclude the error is reversible, entitling Nipper to a new trial. Francis, 413 So. 2d at 1179. REVERSED; REMANDED for a new trial. ROWE, J., concurs with an opinion, which TANENBAUM, J., joins; KELSEY, J., dissents with an opinion. _____________________________