C.C.N., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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C.C.N. appeals an order of restitution imposed after his guilty plea to burglary of a conveyance. The trial court held a restitution hearing without C.C.N.'s presence and without establishing a knowing, intelligent, and voluntary waiver of his constitutional right to attend. The appellate court reversed and remanded for a new hearing.
The trial court erred by conducting the restitution hearing without C.C.N.'s presence or a proper waiver. The State failed to present competent, substantial evidence proving an effective waiver, and the trial court made no findings regarding whether C.C.N. had voluntarily waived his right to attend.
[1] A defendant has a constitutional right to be present at a restitution hearing.
[2] A defendant may waive the right to be present at a restitution hearing, but the waiver must be knowing, intelligent, and voluntary.
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Join FLexlaw to unlock all legal intelligence“It is well settled that a defendant has the constitutional right to be present at a restitution hearing.”
Establishes the fundamental constitutional right at issue in the case
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Join FLexlaw to unlock all legal intelligenceC.C.N. pleaded guilty to burglary of a conveyance on November 13, 2007, and was sentenced to one year's probation. A restitution hearing was scheduled…
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C.C.N. appeals an order of restitution following a guilty plea to burglary of a conveyance. The restitution hearing was held without C.C.N.’s presence or waiver thereof, and restitution was ordered in the amount of $948.09. The State properly concedes error, and we reverse and remand for a new restitution hearing.
On November 13, 2007, C.C.N. pleaded guilty to burglary of a conveyance and was sentenced to one year’s probation. A restitution hearing was held on December 18, *11522007, but C.C.N. was not present. Defense counsel requested a continuance but stated that he was prepared to go forward without C.C.N.’s presence. The court refused to grant a continuance and proceeded to hear testimony from the victim and accept documentation regarding the amount of damage done to the victim’s vehicle. The court ordered restitution in the amount of $948.09.
It is well settled that a defendant has the constitutional right to be present at a restitution hearing. M.W.G. v. State, 945 So.2d 597 (Fla. 2d DCA 2006); T.A.S. v. State, 892 So.2d 1233 (Fla. 2d DCA 2005). A defendant may waive this right and exercise constructive presence through counsel, but the court must conduct the proper inquiry before the proceedings commence to “determine that the defendant’s waiver of the right to be present is knowing, intelligent, and voluntary.” M.W.G., 945 So.2d at 600.
When a defendant is absent from the restitution proceedings, the State must present competent, substantial evidence proving an effective waiver and unsworn statements that the defendant had notice of the hearing are not sufficient to prove waiver. J.B. v. State, 646 So.2d 808 (Fla. 1st DCA 1994). “It is error for a trial court to conduct a restitution hearing in the defendant’s absence without a showing that the absence is voluntary.” T.A.S., 892 So.2d at 1234.
In this case, the trial court failed to conduct an inquiry and made no findings as to whether C.C.N. had voluntarily waived his right to be present. The State offered no evidence to show that C.C.N. was given actual notice of the hearing, and though a probation officer stated C.C.N. knew about the hearing, this statement was not sworn testimony and was made at the end of the hearing.
On this record, the State rightly concedes that it failed to prove C.C.N. knowingly and voluntarily waived his right to be present at the restitution hearing. Accordingly, we reverse and remand for a new restitution hearing at which C.C.N. is present or has effectively waived that right.
Reversed and remanded.
FULMER and WALLACE, JJ., Concur.
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Knespler v. State, 72 So. 3d 299 (Fla. 4th DCA 2011)…concedes, the trial court improperly held the restitution hearing without a showing that appellant voluntarily waived his right to be present.1 [*300] A defendant has the constitutional right to be present at a restitution hearing. C.C.N. v. State, 1 So. 3d 1151, 1152 (Fla. 2d DCA 2009). Although a defendant may waive this right and exercise constructive presence through counsel, the court must determine that the defendant’s waiver is knowing, intelligent, and voluntary. See M.W.G. v. State, 945 So. 2d 597,…
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Bryant v. State, 99 So. 3d 607 (Fla. 2d DCA 2012)…the monitoring device. Over the defense’s objections, the trial court modified Bryant’s probation and imposed a $1200 lien. “It is well settled that a defendant has the constitutional right to be present at a restitution hearing.” C.C.N. v. State, 1 So. 3d 1151, 1152 (Fla. 2d DCA 2009). The State concedes that there was no evidence that Bryant had notice of the hearing or that he voluntarily waived his presence. See M.W.G. v. State, 945 So. 2d 597, 600 (Fla. 2d DCA 2006) (“The State has the burden of provi…
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Holmes v. State, 117 So. 3d 447 (Fla. 2d DCA 2013)…e there was no evidence that defendant, who was not present at the restitution hearing, had received notice of the hearing or voluntarily waived his presence, and there was no evidence presented to establish the amount of the lien); C.C.N. v. State, 1 So. 3d 1151 (Fla. 2d DCA 2009) (stating that a defendant has the constitutional right to be present at a restitution hearing; for effective waiver of that right and presence through counsel, court must conduct proper inquiry to determine that waiver is knowing,…
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
- M.W.G. v. State, 945 So. 2d 597 (Fla. 2d DCA 2006)
- J.B. v. State, 646 So. 2d 808 (Fla. 1st DCA 1994)
- T.A.S. v. State, 892 So. 2d 1233 (Fla. 2d DCA 2005)