JAMES E. SCHIFFER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1993-04-14
No. 92-1000
DELL, FARMER and KLEIN, JJ., concur.
617 So. 2d 357 Florida District Court of Appeal, Fourth District (1993) Positive Treatment
Cited by 16 cases

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Holding

The court held that a defendant has a right to be physically present at a probation revocation hearing unless waived, and that credit for time served must account for the full original sentence if the offense predates statutory changes.


Headnotes

[1] A defendant has the right to be physically present at a probation revocation hearing, absent an affirmative waiver.

[2] A defendant's Sixth Amendment right to counsel is violated when the defendant cannot confer privately with counsel during a video/audio probation revocation proceeding.

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Facts & Procedural History

Defendant was charged with dealing in stolen property, violated probation, and his probation was revoked and sentence imposed via video/audio conferen…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Defendant was charged by information with dealing in stolen property between February 2, and February 4,1988. He pled no contest and was sentenced to five years in the Department of Corrections, to be followed by six months probation. He violated his probation in October of 1989 by failing to pay costs, to report regularly to his probation officer, and by moving without his probation officer’s consent. His probation was extended one year. In February of 1992 another violation of probation warrant was issued. Defendant was charged with a number of violations. The court held a probation revocation hearing which defendant participated in via video/audio arrangement. Several weeks later, the court held a sentencing hearing. Defendant also participated in this hearing via the video setup. The prosecutor advised the court as follows:

He scores 27 to life, Judge, which is the next lowest possible permitted sentence under the guidelines in excess of the maximum possible sentence. So the court would be bound to give the 15 years.

The court sentenced the defendant to 15 years, with credit for 497 days.

Defendant raises three issues on appeal. We reverse on all three. First of all, we agree that the trial court erred in limiting the credit received to 497 days. In this case, defendant, with credit for time served, had completed his original five-year sentence. Because the offense for which he was convicted occurred prior to the effective date of section 948.06(6), Florida Statutes, he is entitled to credit to the full five years regardless of the time he was actually incarcerated. Harrington v. State, 609 So. 2d 712 (Fla. 4th DCA 1992).

We also agree with defendant’s contention that the trial court erroneously believed it had to provide written reasons to justify a downward departure. We have recently held to the contrary. State v. Hogan, 611 So. 2d 78 (Fla. 4th DCA 1992). Moreover, not only does the record demonstrate that the trial court believed that it had to provide written reasons to justify departure, but the record does not indicate that the trial court understood that the prior plea agreement provided the reasons to support departure. See State v. Nickerson, 541 So. 2d 725 (Fla. 1st DCA 1989).

We also find error with the video/audio procedure employed in this case. Defendant has the right to be physically present at a probation revocation hearing. Rule 3.180(a)(9) Florida Rules of Criminal Procedure states “in all prosecutions for crime the defendant shall be present * * * at the pronouncement of judgment and the imposition of sentence.” A probation revocation hearing constitutes a deferred sentencing proceeding. Green v. State, 463 So. 2d 1139, 1140 (Fla.1985). We have, however, permitted the defendant to waive this right. Williams v. State, 578 So. 2d 846 (Fla. 4th DCA 1991).

In Williams, the defendant was present at his sentencing hearing via a video/audio arrangement. We found no fundamental error with the proceedings in that the defendant had signed a written no contest plea specifically agreeing to a video sentencing and, because the defendant was afforded an opportunity to speak privately with his attorney during the proceeding. We distinguished Williams-from Jacobs v. State, 567 So. 2d 16 (Fla. 4th DCA 1990), a case where we found reversible error in a video sentencing procedure, by pointing out that the defendant in Jacobs did not sign a waiver agreement nor did the Jacobs defendant have private access to confer with his counsel.

This case is indistinguishable from Jacobs. The record does not indicate that defendant affirmatively waived his right to be physically present at the revocation proceeding. Moreover, defendant had no means by which he could confer privately with counsel. See Seymour v. State, 582 So. 2d 127, 128 (Fla. 4th DCA 1991) (“It is of vital importance that a defendant have the opportunity to engage in personal and private conference with his counsel”). Defendant has a right to counsel at a probation revocation hearing. State v. Hicks, 478 So. 2d 22 (Fla.1985). Without any procedure whereby defendant could communicate privately with his attorney, defendant’s Sixth Amendment right to counsel was more than impaired, it was obliterated. See Seymour, 582 So. 2d at 129. (“We can imagine no more fettered and ineffective consultation and communication between an accused and his lawyer than to do so by television in front of a crowded courtroom with the prosecutor and judge able to hear the exchange.”).

We therefore reverse and remand. The defendant is entitled to be present at his probation revocation hearing absent record evidence of waiver. If the defendant’s probation is revoked, at resentencing the trial court may consider the prior plea agreement as a basis to justify a downward departure from the guidelines sentence. In addition, the defendant must be given credit for the full five year term previously imposed.

REVERSE AND REMAND.

DELL, FARMER and KLEIN, JJ., concur.


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Cited By

  • Franquiz v. State, 682 So. 2d 536 (Fla. 1996)
    …review of State v. Franquiz, 654 So. 2d 1068 (Fla. 3d DCA 1995), and State v. Delgadillo, 659 So. 2d 1264 (Fla. 3d DCA 1995), and consolidated those cases, which the Third District Court of Appeal certified to be in conflict with Schiffer v. State, 617 So. 2d 357 (Fla. 4th DCA 1993), State v. Hogan, 611 So. 2d 78 (Fla. 4th DCA 1992), and State v. Glover, 634 So. 2d 247 (Fla. 5th DCA 1994). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Franquiz was charged in 1992 with three counts of sexual battery,…
    1 / 2
  • Tyler v. State, 710 So. 2d 645 (Fla. 4th DCA 1998)
    …nfer with counsel. “The mere appointment of counsel does not satisfy the requirements of State v. Hicks [citation omitted] where the trial court fails to give that counsel an opportunity to counsel his client ...” Torres. See also Schiffer v. State, 617 So. 2d 357, 358 (Fla. 4th DCA 1993); Seymour v. State, 582 So. 2d 127, 128 (Fla. 4th DCA 1991). Although two public defenders were available to those who requested counsel, the record does not show that one was assigned to Appellant. Hicks requires counsel (o…
  • Edwards v. State, 721 So. 2d 744 (Fla. 4th DCA 1998)
    …1997); see State v. Hicks, 478 So. 2d 22 (Fla.1985); Allen; Donley v. State, 557 So. 2d 943 (Fla. 2d DCA 1990); Washington. The right to counsel under Hicks includes the ability to confer with counsel prior to entering a plea. See Schiffer v. State, 617 So. 2d 357 (Fla. 4th DCA 1993). In this case, the record does not reflect that the trial court adequately advised appellant of his options at the preliminary hearing for violation of probation, either individually, or as part of a group of alleged violaters…

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