KEITH KNESPLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
After pleading guilty to burglary of a structure, appellant was sentenced to five years in prison followed by two years of probation, with restitution as a condition of probation. The parties agreed that the amount of restitution would be determined within sixty days. Appellant was not present at the restitution hearing when restitution above an agreed amount was imposed. As the State correctly concedes, the trial court improperly held the restitution hearing without a showing that appellant voluntarily waived his right to be present.1
*300A 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, 600 (Fla. 2d DCA 2006); see also Papageorge v. State, 710 So.2d 53, 55 (Fla. 4th DCA 1998).
Accordingly, we reverse and remand for a new restitution hearing.
TAYLOR, HAZOURI and LEVINE, JJ., concur.
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Citator
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Elmer v. State, 140 So. 3d 1132 (Fla. 5th DCA 2014)…circumstances of his voluntary absence. Id. 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. Knespler v. State, 72 So. 3d 299, 300 (Fla. 4th DCA 2011); M.W.G. v. State, 945 So. 2d 597, 600 (Fla. 2d DCA 2006). The right to be present is a basic right that the defendant’s attorney cannot waive without the fully informed and publicly acknowledged consent of the defendant. Tay…
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Zebedee Williams v. State, 76 So. 3d 410 (Fla. 1st DCA 2012)…PER CURIAM. A defendant has a constitutional right to be present at a restitution hearing unless the defendant knowingly, voluntarily, and intelligently waives that right. See Knespler v. State, 72 So. 3d 299, 300 (Fla. 4th DCA 2011). In the instant case, because he was not present at the restitution hearing and because there is nothing in the record to suggest he waived his right to be present, the appellant is entitled to a new restitution hearing. See…
Authorities Cited
- M.W.G. v. State, 945 So. 2d 597 (Fla. 2d DCA 2006)
- Papageorge v. State, 710 So. 2d 53 (Fla. 4th DCA 1998)
- C.C.N. v. State, 1 So. 3d 1151 (Fla. 2d DCA 2009)