WILBUR SINGLETARY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Wilbur Singletary appeals his conviction and sentence, and the court reverses and remands because he was sentenced in absentia on a felony charge without a clear record that he voluntarily waived his right to be present. The court must determine on remand whether the defendant knowingly and voluntarily agreed to the in absentia proceeding.
A defendant cannot be sentenced in absentia for a felony unless he voluntarily absented himself from the hearing. The court reverses and remands for a hearing to determine whether the defendant knowingly, intelligently, and voluntarily agreed to waive his presence and enter a plea in absentia, with the opportunity to withdraw his plea if he did not voluntarily enter into this arrangement.
[1] A defendant cannot be sentenced in absentia for a felony unless they voluntarily absented themselves from the hearing.
[2] A court must determine if a defendant knowingly, intelligently, and voluntarily waived their presence and agreed to enter a plea in absentia.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a defendant can not be sentenced in absentia for a felony unless he voluntarily absented himself from the hearing”
Establishes the fundamental rule that governs in absentia sentencing on felonies, which the State conceded in this case.
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Join FLexlaw to unlock all legal intelligenceSingletary accepted a negotiated plea in an unrelated case (F01-28369) with a deferred five-year sentence to be mitigated to 364 days upon surrender f…
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PER CURIAM.
Wilbur Singletary (“defendant”) appeals the trial court’s judgment and sentence. We reverse. The defendant accepted a negotiated plea on an unrelated case, lower court case number, F01-28369, agreeing to a deferred sentence of five years that would be mitigated to 364 days upon his surrender from a furlough. The trial court stated that upon his surrender, the defendant would also be sentenced concurrently on the instant case, F01-33410. However, the State had not yet filed the information on the present case.
The defendant did not show up to surrender from his furlough because he had been arrested on a third case. The State filed the information in the instant case and the trial court issued an alias capias for his arrest. The court also entered a commitment order on case number F01-28369. When the defendant subsequently appeared in court, the trial court sentenced him to five years on case number F01-28369, and denied his motion to mitigate the sentence. The State then offered the defendant a concurrent five year sentence on the present case. The defendant turned down the offer and requested a trial.
A year later, the trial court sentenced the defendant in absentia to a five year prison term. The sentencing order was entered on November 22, 2002. The judgment and sentence were never pronounced in court and the transcript 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 tried in absen-tia does not apply to defendant charged with a felony).
Accordingly, we reverse and remand for a hearing to determine whether the defendant knowingly, intelligently and voluntarily agreed to waive his presence and enter a plea in absentia. If the court concludes that the defendant did not voluntarily enter into this plea, the defendant should be given the opportunity to withdraw his plea.
Reversed and remanded with instructions.
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Citator
Cited By
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Mattia v. State, 907 So. 2d 683 (Fla. 2d DCA 2005)…resence was necessary to establish a basis for withdrawal of the plea, the record does not reflect that Mattia knowingly, freely, and voluntarily waived his right to be present. See Turner v. State, 530 So. 2d 45, 49 (Fla.1988); Singletary v. State, 870 So. 2d 851, 852 (Fla. 3d DCA 2003); Tarver v. State, 741 So. 2d 551, 553 (Fla. 4th DCA 1999). The record also does not reflect that Mattia was even aware that a hearing would take place or that he had a right to be at the hearing. Additionally, the record does…
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Jackson v. State, 144 So. 3d 658 (Fla. 2d DCA 2014)…as a right to be present at all critical stages of his trial and cannot be sentenced in absentia for a felony unless he voluntarily waived his presence at the hearing. See Miller v. State, 833 So. 2d 318, 319 (Fla. 2d DCA 2003); Singletary v. State, 870 So. 2d 851, 852 (Fla. 3d DCA 2003). The burden is on the defendant, after his apprehension or appearance, to establish that his failure to appear was not voluntary. Wallen v. State, 932 So. 2d 493, 493 (Fla. 4th DCA 2006). Jackson attached documentation to hi…
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Michel Hernandez v. State, 186 So. 3d 1103 (Fla. 3d DCA 2016)…defendant “willfully” fails to appear at a sentencing hearing after he has been given “proper notice.” Moreover, “a defendant cannot be sentenced in.absentia for a felony unless he voluntarily absented himself from the hearing.” Singletary v. State, 870 So. 2d 851, 852 (Fla. 3d DCA 2003) (citing Zuluaga v. State, 793 So. 2d 60 (Fla. 4th DCA 2001)). Here, the record is unclear as to what notice the defendant had of the July 10, 2014 status report date which triggered the imposition of the thirty-year sentence.…
Authorities Cited
- Heldrado A. Zuluaga v. State, 793 So. 2d 60 (Fla. 4th DCA 2001)
- Nicolo J. Leone v. State, 643 So. 2d 1198 (Fla. 5th DCA 1994)