JEFFREY SUMMERALL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jeffrey Summerall appeals the revocation of his probation. The Florida District Court of Appeal reverses the probation revocation order because Summerall was denied his constitutional right to be present at the January 13, 1989 hearing where the trial court heard final arguments, found him in violation of probation, and imposed a nine-year sentence.
Summerall was denied his constitutional right to be present at a critical stage of the proceedings. The pronouncement of a verdict and sentence in a probation revocation hearing is a critical stage requiring the defendant's presence unless voluntarily waived. No such waiver occurred here because Summerall had explicitly requested presence at all critical stages and required written or verbal consent in open court for any waiver, which he never provided.
[1] A defendant has a constitutional right to be present during a critical stage of probation revocation proceedings, including the pronouncement of a verdict and sentence.
[2] A defendant's presence is required at a probation revocation hearing where the court hears argument, finds a violation, and imposes sentence, absent a voluntary waiver.
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the fundamental constitutional principle that the defendant must be present when sentence is pronounced in probation revocation proceedings
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Join FLexlaw to unlock all legal intelligenceSummerall attended a three-day probation revocation hearing from December 19, 1988 to January 12, 1989 with counsel present. On January 13, 1989, the …
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PER CURIAM.
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 hearing and that his presence not be waived “without the written or verbal consent of the Defendant in open court.” Defense counsel expressly accepted this motion and the trial court granted it. Without dispute, the defendant at no time gave his written or verbal consent to be absent from the January 13, 1989 hearing, and thus no waiver of his constitutional right to be present at such hearing is shown on this record. See Amazon v. State, 487 So. 2d 8 (Fla.), cert. denied, 479 U.S. 914, 107 S.Ct. 314, 93 L.Ed.2d 288 (1986); Howard v. State, 484 So. 2d 1319 (Fla. 3d DCA), rev. denied, 492 So. 2d 1332 (Fla.1986).
The remaining points on appeal are moot in view of the above. The final order under review is reversed and the cause is remanded to the trial court with directions to rehear the final argument of the parties with the defendant present and thereafter to render a decision on the merits of the violation of probation charge.
Reversed and remanded.
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Papageorge v. State, 710 So. 2d 53 (Fla. 4th DCA 1998)…to be present at the stages of his trial where fundamental fairness might be thwarted by his absence. See Coney v. State, 653 [*55] So. 2d 1009, 1013 (Fla.1995), cert. denied, 516 U.S. 921, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995); Summerall v. State, 588 So. 2d 31, 32 (Fla. 3d DCA 1991). Florida Rule of Criminal Procedure 3.180(a)(9) mandates that a criminal defendant be present “at the pronouncement of judgment and the imposition of sentence,” thus recognizing that sentencing is a crucial stage of a criminal…
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Jarrett v. State, 654 So. 2d 973 (Fla. 1st DCA 1995)…reach appellant’s constitutional claims, because Florida Rule of Criminal Procedure 3.180 clearly dictates reversal. E.g., Leone v. State, 643 So. 2d 1198 (Fla. 5th DCA 1994) (defendant’s presence required in felony prosecution); Summerall v. State, 588 So. 2d 31 (Fla. 3d DCA 1991) (felony defendant’s presence required at probation revocation hearing); Bradley v. State, 420 So. 2d 417, 418 (Fla. 1st DCA 1982) (alleged contemnor’s presence required in indirect criminal contempt proceedings). Entitled “Presenc…
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Aguiar v. State, 633 So. 2d 557 (Fla. 3d DCA 1994)…udgment and the imposition of sentence.” Fla.R.Crim.P. 3.180(a)(9). See also Capuzzo v. State, 578 So. 2d 328 (Fla. 5th DCA 1991) (defendant has right to be present at sentencing), decision approved by, 596 So. 2d 438 (Fla.1992); Summerall v. State, 588 So. 2d 31 (Fla. 3d DCA 1991) (sentencing is critical stage where defendant has right to be present); Thacker v. State, 185 So. 2d 202 (Fla. 3d DCA 1966) (same). And, while at one time there was a conflict among the districts as to whether that right could be…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Commissioner of Internal Revenue v. Est. of Church, 335 U.S. 632 (U.S. 1949)
- THE Florida BAR v. Mullins, 527 So. 2d 1380 (Fla. 1988)
- Francis v. State, 413 So. 2d 1175 (Fla. 1982)
- Ira Martin Amazon v. State, 487 So. 2d 8 (Fla. 1986)
- Oliver v. Wainwright, 479 U.S. 914 (U.S. 1986)
- Amazon v. Florida, 479 U.S. 914 (U.S. 1986)
- Quarterman v. State, 506 So. 2d 50 (Fla. 2d DCA 1987)
- Howard v. State, 484 So. 2d 1319 (Fla. 3d DCA 1986)