RAY ANTHONY DONALDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ray Anthony Donaldson appeals the denial of his motion challenging restitution orders, arguing he was not present at the restitution hearing and did not knowingly waive his right to attend. The court reversed the postconviction court's denial on this specific ground, finding the trial court failed to establish a knowing, intelligent, and voluntary waiver of his presence.
A criminal defendant has the right to be present at a restitution hearing because it is critical to the outcome of the proceeding. If a defendant is absent, the court must make an affirmative inquiry to determine that any waiver of this right is knowing, intelligent, and voluntary. The trial court's failure to do so requires reversal and a new restitution hearing.
[1] A criminal defendant has a right to be present at a restitution hearing where the amount of restitution is determined.
[2] A trial court must obtain a knowing, intelligent, and voluntary waiver from a defendant before proceeding with a restitution hearing in the defendant's absence.
Previewing 2 of 5 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 criminal defendant's presence is required "at any stage of the criminal proceeding that is critical to its outcome if [the defendant's] presence would contribute to the fairness of the procedure."”
Establishes the constitutional standard for when a defendant's presence is required at criminal proceedings.
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Join FLexlaw to unlock all legal intelligenceDonaldson pleaded guilty to aggravated battery and was sentenced to five years in prison followed by five years' probation, with restitution to be det…
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WALLACE, Judge.
Ray Anthony Donaldson appeals the postconviction court’s denial of his motion that challenged two orders requiring him to pay restitution.1 We affirm without discussion the postconviction court’s denial of all grounds asserted in Mr. Donaldson’s motion except the ground concerning the trial court’s decision to conduct the hearing in his absence. As to this claim, we reverse the postconviction court’s order denying Mr. Donaldson’s motion.
Mr. Donaldson pleaded guilty to one count of aggravated battery. He was sentenced to five years in prison followed by five years’ probation and was ordered to pay restitution, with the amount to be determined at a subsequent hearing. Mr. Donaldson was not present at the restitution hearing, and the circuit court imposed restitution without making a finding that Mr. Donaldson had waived his right to be present. He filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a) claiming, among other things, that the circuit court erred by imposing restitution despite his absence from the hearing. Mr. Donaldson appeals the postconviction court’s order denying his motion to correct illegal sentence.
As a preliminary matter, we observe that this issue is not cognizable in a rule 3.800(a) motion. See Scott v. State, 962 So. 2d 388, 388 (Fla. 4th DCA 2007) (“Denial of the right to be present at sentencing does not make the resulting sentence illegal for rule 3.800(a) purposes.”); Judge v. State, 596 So. 2d 73, 77 (Fla. 2d DCA 1991) (“[Rule 3.800(a)] is not a vehicle designed 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 under rule 3.850. See Baker v. State, 933 So. 2d 720, 721 (Fla. 4th DCA 2006).
A criminal defendant’s presence is required “at any stage of the criminal proceeding that is critical to its outcome if [the defendant’s] presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987).
The right to be present applies to hearings where restitution is imposed and the amount of restitution is determined. M.W.G. v. State, 945 So. 2d 597, 599-600 (Fla. 2d DCA 2006).
If the defendant waives his presence at the restitution hearing, “the court must determine that the defendant’s waiver ... is knowing, intelligent, and voluntary.” Id. at 600 (citing Coney v. State, 653 So. 2d 1009, 1013 (Fla. 1995)).
The State properly concedes that Mr. Donaldson was not present at the hearing and that the trial court failed to make the necessary inquiry.
Consequently, the postconviction court should have granted Mr. Donaldson’s motion on this ground, set aside the restitution orders, and granted him a new restitution hearing.
Accordingly, we affirm in part, reverse in part, and remand for a new restitution hearing at which Mr. Donaldson shall be entitled to be present.
Affirmed in part, reversed in part, and remanded with instructions.
LaROSE, J„ and THREADGILL, EDWARD F., Senior Judge, Concur. . Mr. Donaldson’s appellate counsel initially filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because we determined that several issues of potential merit existed concerning the entry of the restitution orders, we ordered supplemental briefing in accordance with Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Windh v. State, 113 So. 3d 150 (Fla. 2d DCA 2013)…to the Sixth Amendment, a criminal defendant has a right to be present “ ‘at any stage of the criminal proceeding that is critical to its outcome if [the defendant’s] presence would contribute to the fairness of the procedure.’” Donaldson v. State, 985 So. 2d 63, 64 (Fla. 2d DCA 2008) (quoting Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)); see also Coney v. State, 653 So. 2d 1009, 1013 (Fla.1995); Baker v. State, 979 So. 2d 453, 455 (Fla. 2d DCA 2008). A restitution hearing…
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Mason Ryan Pierce v. State, 133 So. 3d 1186 (Fla. 2d DCA 2014)…fendant knowingly and voluntarily waived right to be present). In this case there was no showing that Pierce received notice of the hearing, and the State presented no evidence to show that he waived his right to be present. See Donaldson v. State, 985 So. 2d 63, 64 (Fla. 2d DCA 2008) (noting that State properly conceded error in restitution order when the defendant had not been present for the restitution hearing and the circuit court failed to determine that the defendant’s waiver of his presence was know…
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Heare v. State, 283 So. 3d 390 (Fla. 2d DCA 2019)…r alleges or may be amended to allege a facially sufficient, timely claim under rule 3.850. -3- The closest precedent from our court applicable to these questions is Donaldson v. State, 985 So. 2d 63 (Fla. 2d DCA 2008). In that case, after pleading guilty to a count of aggravated battery, the defendant was sentenced to prison time and ordered to pay restitution in an amount to be determined at a later hearing. Id. at 64. The defendant was not…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Penson v. Ohio, 488 U.S. 75 (U.S. 1988)
- Kentucky v. Stincer, 482 U.S. 730 (U.S. 1987)
- Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)
- Coney v. State, 653 So. 2d 1009 (Fla. 1995)
- M.W.G. v. State, 945 So. 2d 597 (Fla. 2d DCA 2006)
- Heldrado A. Zuluaga v. State, 793 So. 2d 60 (Fla. 4th DCA 2001)
- Altereque L. Baker v. State, 933 So. 2d 720 (Fla. 4th DCA 2006)
- Scott v. State, 962 So. 2d 388 (Fla. 4th DCA 2007)