MASON RYAN PIERCE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mason Pierce appeals a restitution order entered after a hearing conducted in his absence without proof that he waived his right to be present. The court reverses, holding that a restitution hearing is a critical stage of criminal proceedings where the defendant has a Sixth Amendment right to be present, and any waiver must be knowing and voluntary.
A restitution hearing is a critical stage of criminal proceedings where a defendant has a Sixth Amendment right to be present. The State must prove that a defendant knowingly and voluntarily waived this right by establishing that the defendant had notice of the hearing and intentionally did not appear, or left the court. Here, there was no showing that Pierce received notice or waived his right to be present, so the restitution order must be reversed.
[1] A defendant has a Sixth Amendment right to be present at a restitution hearing.
[2] A restitution hearing is a critical stage of a criminal proceeding.
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Join FLexlaw to unlock all legal intelligence“A restitution hearing is a critical stage of a criminal proceeding, and a defendant has a Sixth Amendment right to be present.”
Establishes the fundamental constitutional right at issue and the critical nature of restitution hearings
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Join FLexlaw to unlock all legal intelligencePierce entered no contest pleas in two cases involving the same victim. The circuit court ordered $15 in restitution in one case and reserved jurisdic…
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Mason Pierce appeals a restitution order entered after a hearing in Pierce’s absence. We reverse.
Pierce entered no contest pleas in two cases involving the same victim. When accepting the pleas, the circuit court ordered $15 in restitution in one case and reserved jurisdiction to determine restitution in the other. At the subsequent hearing, the assistant public defender who had represented Pierce at the change-of-plea proceeding was present, but Pierce was not. The public defender was unaware of Pierce’s whereabouts and did not know whether Pierce had received notice of the hearing. Over the public defender’s objection, the court conducted the hearing in Pierce’s absence and entered a restitution award of $1070.
A restitution hearing is a critical stage of a criminal proceeding, and a defendant has a Sixth Amendment right to be present. Windh v. State, 113 So.3d 150, 151 (Fla. 2d DCA), review denied, No. SC13-1250, 2013 WL 6331684 (Fla. Dec. 4, 2013). “[U]nless the State can show that a defendant knowingly and voluntarily waived his right to be present at his restitution hearing, it is error to proceed in his absence.” Id. (quoting Thar v. State, 8 So.3d 1204, 1205 (Fla. 2d DCA 2009)).
To prove such a knowing and voluntary waiver, the State must establish that the defendant had notice of the hearing and that he intentionally did not appear or that he left the court during the proceeding. Baker v. State, 979 So.2d 453, 455 (Fla. 2d DCA 2008) (reversing restitution order entered after a hearing conducted in defendant’s absence; prosecutor admitted mailing notice to wrong address and defense attorney had been unable to locate client in time, so no evidence showed defendant had actual notice or knowledge of hearing and therefore did not show he waived his presence); see also Holmes v. State, 117 So.3d 447, 448 (Fla. 2d DCA 2013) (reversing restitution order entered after hearing conducted in defendant’s absence because nothing suggested defendant had notice or had waived his presence: “The State did not suggest that it had noticed Mr. Holmes and Mr. Holmes’ counsel did not suggest that he had informed his client of the hearing.”); M.W.G. v. State, 945 So.2d 597 (Fla. 2d DCA 2006) (reversing restitution order entered after hearing conducted in defendant’s absence; although record showed that defendant had been given notice of hearing date, State failed to carry its bur*1188den of showing defendant 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 knowing, intelligent, and voluntary). The State contends that Pierce failed to preserve this issue by filing a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). But it was unnecessary for Pierce to do so because the error was preserved by the public defender’s objection at the hearing. See Fla. R. Crim. P. 3.800 (court cmt.) (“A motion pursuant to this rule is needed only if the sentencing error has not been adequately preserved for review at an earlier time in the trial court.”). We reverse and remand for a new restitution hearing.
Reversed.
VILLANTI and WALLACE, JJ., Concur.
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Citator
Cited By
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Bishop v. State, 143 So. 3d 1073 (Fla. 2d DCA 2014)…la. 2d DCA 2006)). The State has the burden to show the voluntary nature of the defendant’s waiver, and such burden exists regardless of whether notice is at issue or whether defendant’s counsel is present at the hearing. See, e.g., Pierce v. State, 133 So. 3d 1186, 1187-88 (Fla. 2d DCA 2014). Thus, even if Bishop’s counsel had appeared before the trial court at the hearing in the capacity of constructively representing Bishop’s interests, the trial court still would have been required to determine the knowing…
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C.W. v. State, 150 So. 3d 882 (Fla. 2d DCA 2014)…earing and the State concedes that if C.W. was not present and had not waived his presence, reversal is required. See Bishop v. State, 148 So. 3d 1073, 1075 (Fla. 2d DCA 2014). The burden to prove waiver is on the State. Id. (citing Pierce v. State, 133 So. 3d 1186, 1187-88 (Fla. 2d DCA 2014)). The State did not do so. Because the record is clear that C.W. was not present at his restitution hearing and the State has failed to meet its burden that C.W. waived his right to be present, we reverse the restitutio…
Authorities Cited
- M.W.G. v. State, 945 So. 2d 597 (Fla. 2d DCA 2006)
- Baker v. State, 979 So. 2d 453 (Fla. 2d DCA 2008)
- Thar v. State, 8 So. 3d 1204 (Fla. 2d DCA 2009)
- Donaldson v. State, 985 So. 2d 63 (Fla. 2d DCA 2008)
- Windh v. State, 113 So. 3d 150 (Fla. 2d DCA 2013)
- Holmes v. State, 117 So. 3d 447 (Fla. 2d DCA 2013)