HELDRADO A. ZULUAGA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred by summarily denying the motion without determining if the defendant's absence was voluntary.
Zuluaga failed to appear for a deferred sentencing hearing as required by his plea agreement, and was sentenced in absentia. He later sought postconvi…
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PER CURIAM.
Heldrado Zuluaga appeals the summary denial of his postconviction motion.1 He entered into a plea agreement under which sentencing was deferred. The agreement provided that, if he failed to appear at the sentencing hearing, he would be sentenced in absentia to thirty years, with a fifteen-year minimum mandatory term and a fine. Zuluaga failed to appear and was sentenced in absentia. He was apprehended and was returned to court for a brief hearing during which the sentence was orally pronounced.
Florida Rule of Criminal Procedure 3.180(c) permits sentencing in absentia if the defendant “voluntarily absents himself or herself from the presence of the court without leave of court.” The court made no finding that Zuluaga’s absence was voluntary, either at the original sentencing hearing or when the sentence was orally pronounced. We reverse the denial of the postconviction motion and remand for the trial court to conduct such further proceedings as are necessary to make that determination.2 If the court concludes that Zuluaga voluntarily absented himself from the proceedings within the meaning of rule 3.180(c), resentencing will not be required.
STONE, STEVENSON and TAYLOR, JJ., concur. . Zuluaga's motion was filed pursuant to leave granted by this court in the order dismissing his direct appeal. We reach no conclusion about whether in another case the time for filing under Florida Rule of Criminal Procedure 3.850(b) would begin to run from the date of the original sentencing or from the date that the defendant is remanded into custody.
. We affirm the finding that Zuluaga was not entitled to relief on his claim that his plea was involuntary. The transcript of the change of plea hearing conclusively refuted his claim that he was misadvised about the sentence that could be imposed under the plea agreement.
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Heldrado Zuluaga v. State, 32 So. 3d 674 (Fla. 1st DCA 2010)…sentencing court and relief was denied. Apparently, Appellant has actively litigated his sentence in the Seventeenth Judicial Circuit and Fourth District Court of Appeals. See, Zuluaga v. State, (Case No. 4D98-2328, Fla. 4th DCA); Zuluaga v. State, 793 So. 2d 60 (Fla. 4th DCA 2001) rev. denied, State v. Zuluaga, 817 So. 2d 850 (Fla.2002); Zuluaga v. State, 842 So. 2d 127 (Fla. 4th DCA 2003); Zuluaga v. State, 872 So. 2d 914 (Fla. 4th DCA 2004); Zuluaga v. State, 888 So. 2d 650 (Fla. 4th DCA 2004) appeal dis…
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Donaldson v. State, 985 So. 2d 63 (Fla. 2d DCA 2008)…to re-examine whether the procedure employed to impose the punishment comported with statutory law and due process.”). Rather, this issue is properly considered in a motion filed under Florida Rule of Criminal Procedure 3.850. See Zuluaga v. State, 793 So. 2d 60 (Fla. 4th DCA 2001) (ruling on a claim of improper sentencing in absentia raised in a rule 3.850 motion). Because Mr. Donaldson’s motion was properly sworn and was filed within the time limitations of rule 3.850, we treat his motion as if filed unde…
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Singletary v. State, 870 So. 2d 851 (Fla. 3d DCA 2003)…pt from November 22, 2002 does not reflect a plea colloquy or sentencing hearing. The State correctly concedes a defendant can not be sentenced in absentia for a felony unless he voluntarily absented himself from the hearing. See Zuluaga v. State, 793 So. 2d 60 (Fla. 4th DCA 2001)(re-mand required to determine if defendant voluntarily absented himself from hearing where he was sentenced in absentia); Leone v. State, 643 So. 2d 1198 (Fla. 5th DCA 1994)(rule that defendant charged with a misdemeanor may be t…
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