ERNESTO VENTURA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ernesto Ventura appeals his 60-year habitual offender sentence imposed after he failed to appear for sentencing on a substantial assistance plea agreement. The Third District Court of Appeal reverses and remands because the trial court violated Ventura's right to address the court before sentencing and failed to verify his claim that he had retained new counsel.
The trial court erred in two respects: (1) when Ventura informed the court he had retained new counsel, the court should have recessed to verify retention and allow new counsel to appear and be heard; and (2) under Florida Rule of Criminal Procedure 3.720(b), Ventura had a right to make a statement to the court before sentencing, even in a case with a mandatory sentence, which the court cannot refuse.
[1] A trial court must recess a sentencing hearing to verify the retention of new counsel and allow that counsel to appear and be heard if the defendant has indeed retained n…
[2] Under Florida Rule of Criminal Procedure 3.720(b), a trial court must entertain submissions and evidence relevant to the sentence before imposing it.
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Join FLexlaw to unlock all legal intelligence“when defendant informed the trial court that he had retained new counsel, the court should have recessed the sentencing hearing to verify the retention and, if true, allowed new counsel to appear and be heard.”
Establishes the procedural requirement to verify and allow newly retained counsel to appear
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Join FLexlaw to unlock all legal intelligenceIn July 1997, Ventura entered into a substantial assistance plea agreement providing that failure to appear for sentencing would subject him to a 60-y…
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COPE, J.
Defendant-appellant Ernesto Ventura appeals the sentence imposed after he failed to comply with certain provisions of his plea agreement. We reverse.
In July 1997 defendant entered into a substantial assistance plea under which, if he failed to appear for sentencing, he would be subject to a 60-year habitual offender sentence. Defendant was represented by privately-retained counsel, George Garcia. Defendant did not appear and a capias warrant was issued for his arrest. Defendant was subsequently arrested and a sentencing hearing was held in June 1998.
At the sentencing hearing, Mr. Garcia stated only that he had not been in contact with defendant since the July 1997 hearing on the substantial assistance agreement. Mr. Garcia did not offer any statement or evidence on behalf of defendant. Defendant then told the court that he had retained new counsel Sy Gaer, to attend the hearing and speak on his behalf. Because Mr. Gaer had not filed an appearance on behalf of defendant and was not present in the courtroom, the trial court refused to postpone the proceedings and imposed sentence. The court said it would make no difference in any event because the court interpreted the substantial assistance agreement to call for a 60-year sentence, regardless of the circumstances. Defendant asked the court for the opportunity to speak. The court refused that request as well. Defendant was sentenced to the 60-year habitual offender sentence and has appealed.
We now reverse.
First, when defendant informed the trial court that he had retained new counsel, the court should have recessed the sentencing hearing to verify the retention and, if true, allowed new counsel to appear and be heard. Second, under Florida Rule of Criminal Procedure 3.720(b), before imposing sentence the trial court is required to “entertain submissions and evidence by the parties that are relevant to the sentence.” Under the rule, defendant was entitled to make a statement to the court. See Culbertson v. State, 306 So. 2d 142, 143 (Fla. 2d DCA 1975).
As we view the matter, the opportunity to address the court must be allowed even if the case involves a mandatory sentence. Respecting the right of the defendant to address the court “maximiz[es] the perceived equity of the process .... ” American Bar Association Standards for Criminal Justice § 18-5.17 commentary at 208 (3d ed.1994).
Where the court refuses to hear a statement by the defendant, the case must be remanded for a new sentencing hearing. See Davis v. State, 642 So. 2d 136, 137 (Fla. 3d DCA 1994); Hargis v. State, 451 So. 2d 551, 552 (Fla. 5th DCA 1984).
On remand the parties should address the question whether the relevant part of the substantial assistance agreement in this case called for a mandatory 60-year term as a habitual offender, or whether the substantial assistance agreement gave the court discretion over the length of sentence. As summarized in the transcript, a failure to appear for sentencing would make the defendant “subject to” such a 60-year habitual offender sentence. The question is whether “subject to” allows the court discretion over sentence length.
Reversed and remanded for a new sentencing hearing.
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Citator
Cited By (11 total)
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Green v. State, 84 So. 3d 1169 (Fla. 3d DCA 2012)…a. 4th DCA 2011) (holding sentence was proper where court’s comments regarding lack of remorse were merely a recognition that there was no basis to grant defendant's request for a reduced sentence). . See Fla. R.Crim. P. 3.720(b); Ventura v. State, 741 So. 2d 1187 (Fla. 3d DCA 1999); Barry v. State, 330 So. 2d 512 (Fla. 1st DCA 1976).…
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Chillingworth v. State, 846 So. 2d 674 (Fla. 4th DCA 2003)…the Florida Rules of Criminal Procedure requires the trial court to “entertain submissions and evidence by the parties that are relevant to the sentence. Under the rule, the defendant was entitled to make a statement to the court,” Ventura v. State, 741 So. 2d 1187, 1189 (Fla. 3d DCA 1999), as well as present matters in mitigation. Hargis v. State, 451 So. 2d 551 (Fla. 5th DCA 1984). Here, the defendant had an opportunity to present witnesses in October, but the trial court refused to allow him to present addi…
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Guichard Jean-Baptiste v. State, 155 So. 3d 1237 (Fla. 4th DCA 2015)…b). Our courts have read rule 3.720(b) as requiring a trial court to permit a defendant to make a statement to the court. Dean v. State, 60 So. 3d 532 (Fla. 1st DCA 2011); Chillingworth v. State, 846 So. 2d 674 (Fla. 4th DCA 2003); Ventura v. State, 741 So. 2d 1187 (Fla. 3d DCA 1999). We previously determined that the trial court “departed from the essential requirements set forth in rule 3.720(b)” where it sentenced the defendant without giving the defendant or his counsel an opportunity to present any eviden…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Culbertson v. State, 306 So. 2d 142 (Fla. 2d DCA 1975)
- Hargis v. State, 451 So. 2d 551 (Fla. 5th DCA 1984)
- Davis v. State, 642 So. 2d 136 (Fla. 3d DCA 1994)